Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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 5 contracts

Samples: Amendment No. 2 to Facility Documents (Blue Owl Technology Income Corp.), Credit and Security Agreement (Blue Owl Credit Income Corp.), Credit and Security Agreement (Blue Owl Technology Income Corp.)

Assignability. (a) 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 ~~conditions set forth~~ 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 ~~Section 12.06~~Agreement express or implied, ~~each Lender~~ 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 Borrower (such consent not~~ from time to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agenttime, assign ~~to any Person~~ 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 Xxxxx 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 Xxxxx 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 Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person ~~other than a Competitor~~with the prior written consent of Seller (such consent not to be unreasonably delayed, conditioned or withheld); ~~provided~~ provided, that, with respect to any such sale to an Affiliate of Buyer or made during the continuation of an Event of Default, no such consent from Seller shall be required; provided, further, that (Ai) ~~such Lender~~Buyer’s obligations under this Agreement shall remain unchanged, ; (Bii) ~~such Lender~~ Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations, ; (Ciii) ~~the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary 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 (iv) Buyer shall act as agent for all purchasers, assignees and point of contact for Seller pursuant to agency provisions to be agreed upon by Buyer, its intended purchasers and/or assignees and Seller. (c) 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 Buyer assigns all or a portion of its rights and obligations under this Agreement, ~~and (D) each Participant shall have agreed~~ the parties hereto agree to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change negotiate in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document and each Lender hereunder, and each Participant, must at all times be good faith 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”). Each Lender severally 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 an Accredited Investor and a Qualified Purchaserto add agency provisions similar to those included in repurchase agreements for similar syndicated repurchase facilities. (f) Notwithstanding any other provision of this Section 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 4 contracts

Samples: Master Repurchase Agreement and Securities Contract (Radian Group Inc), Master Repurchase Agreement and Securities Contract (Radian Group Inc), Master Repurchase Agreement and Securities Contract (Radian Group Inc)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor This Agreement shall not be ~~deemed unreasonable)) and the Administrative Agent, assign to~~ assigned or transferred by any ~~Person all~~ Licensee in whole or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitivepart, including ~~without limitation~~by operation of Law, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Licensors, which consent 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 (in a form reasonably agreed upon) for any liability or obligation of the assignee or transferee under this Agreement and the ~~Lenders. (i) Any Lender may, without~~ assignee or transferee shall agree in a written agreement with Licensors to assume all of 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 ~~to any Person other than a Competitor; provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) 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, ~~(C) the Borrower~~further, ~~the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders~~ that Licensees shall ~~continue~~ update Schedule 1 to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. Any agreement disclose any permitted assignment or transfer 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. The Borrower agrees that 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~~ in Section ~~12.03(f) (it being understood that the documentation required under Section 12.03(f) shall be delivered to the participating Lender~~1.1(o)) to the same extent as if it were a Lender and had acquired its interest by assignment under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant. (iib) In Notwithstanding the ~~event that any Lender sells participations in any portion of its rights and obligations hereunder~~foregoing, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance this Agreement may be ~~participated~~ assigned or transferred by any Licensee in whole or in part ~~only~~ 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 permitted assignment or transfer by ~~registration~~ a Licensee, the assignee or transferee shall agree in a written agreement with Licensors to assume all of the obligations under this Agreement relating to the relevant Licensee(s) or Licensed Radio Station(s) that are the subject of such ~~participation on~~ assignment or transfer and 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register assigning party shall be ~~conclusive absent manifest error,~~ relieved of its obligations hereunder and ~~such Lender shall treat each Person whose name is recorded in~~ no longer deemed a “Licensee” for the ~~Participant Register as the owner of such participation for all~~ purposes of this ~~Agreement notwithstanding~~ Agreement; or (ii) 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 the terms and conditions of this Agreement; 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 ~~the contrary. For the avoidance~~ Licensors of ~~doubt, the Administrative Agent~~ such assignment or transfer. (c) Any purported assignment or transfer in ~~its capacity as Administrative Agent)~~ violation of this Section 12.7 shall ~~have~~ be null and void and of no ~~responsibility for maintaining a Participant Register~~effect. (d) ~~The Administrative Agent~~Subject to the foregoing Sections (a) and (b), ~~on behalf~~ this Agreement shall be binding upon and inure to the benefit of and ~~acting solely for this purpose as~~ be enforceable by the ~~non-fiduciary agent of~~ Parties and their permitted successors and assigns. For the ~~Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy~~ purposes of this Agreement, ~~each signature page hereto, each Assignment and Acceptance delivered~~ a “successor” shall include any entity that is a legal successor to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 Party as a ~~Lender and the owner~~ result of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the Borrower, the Collateral Manager, the Collateral Agent a sale 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 acquisition of such ~~assignment or sale on the Register (and each Note with respect to the Advances~~Party, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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~~merger, ~~that it is an Accredited Investor and a Qualified Purchaser. (f) Notwithstanding any other provision~~ consolidation, sale of ~~this Section 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~~ 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

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

Assignability. ~~(a) Subject~~ 16.1 This Agreement is binding upon, and will inure to the ~~conditions set forth in~~ benefit of, The Regents, its successors and assigns. Licensee may assign or transfer this ~~Section 12.06, each Lender may,~~ Agreement only with the prior written consent of ~~the Borrower (such~~ The Regents. The prior written consent ~~not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall~~ of The Regents will not be ~~deemed unreasonable)) and~~ required if the ~~Administrative Agent, assign to any Person~~ assignment or transfer of this Agreement is in conjunction with a bona fide arms’ length transaction involving a merger or the transfer of all or ~~a portion~~ substantially all of the capital stock or business of Licensee to which this license relates, so long as Licensee is in good standing with its ~~rights and~~ obligations under this Agreement and The Regents is legally, contractually, and, per its policies, able to enter into an agreement with such assignee or transferee (~~including all or a portion~~ the phrase “policies” understood as broad, Regents-wide restrictions on assignments to certain classes of ~~its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment);~~ companies) and provided that such ~~consent~~ assignment shall not place the Regents in a conflict of commitment. 16.2 In any assignment or transfer of this Agreement, the conditions (i)-(iii) below shall be ~~deemed to have been granted~~ timely met. Any attempted assignment by ~~the Borrower if the Borrower shall not have objected~~ Licensee other than in ~~writing within seven (7) Business Days of receipt of any such request for consent; provided, further, that:~~accordance with this Section will be null and void. (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee~~ Licensee is ~~(A) a Lender or any of~~ then in good standing with its ~~Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor)~~obligations under this Agreement; (ii) Licensee provides The Regents with written notice of such assignment, identifying the ~~Borrower~~assignee or transferee entity’s ~~consent~~ name and contact information, no later than the earlier of (x) the date such transaction is first publicly announced and (y) the date of consummation of such transaction (it being understood, however, that Licensee will endeavor to provide The Regents with prior written notice of the proposed assignment to the extent practicable under the circumstances and not prohibited by applicable law or regulation or Licensee’s contractual obligations to the applicable third party); (iii) provide The Regents with a written agreement signed by the proposed acquirer or successor entity agreeing to be bound by all of the provisions of this Agreement, as well as assume all responsibilities and liabilities that arose under this Agreement prior to the effective date of the proposed assignment, as if such acquirer or successor entity were the original Licensee within thirty (30) days after any such assignment; and (iv) pay to The Regents an assignment ~~pursuant to this Section 12.06(a~~fee of [***] within thirty (30) ~~shall~~ days after any such assignment. This assignment fee will not be required if ~~an Event~~ the Licensee can establish by documented evidence that it (or together with its Sublicensee) has expended more than [***] in the development 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~~ Licensed Products prior ~~written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 anticipated assignment or ~~sale on the Register (and each Note with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06~~transfer. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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 4 contracts

Samples: Exclusive License Agreement (Erasca, Inc.), Exclusive License Agreement (Erasca, Inc.), Exclusive License Agreement (Erasca, Inc.)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor This Agreement shall not be ~~deemed unreasonable)~~assigned by operation of Law or otherwise without the prior written consent of GGP and Spinco, except that each Party may: (i) ~~and the Administrative Agent,~~ assign ~~to any Person~~ all ~~or a portion~~ of its rights and obligations under this Agreement ~~(including all or a portion~~ to any of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consentSubsidiaries; provided, ~~further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any~~ that no such assignment shall ~~be required if~~ release GGP or Spinco, as the ~~assignee is (A) a Lender~~ case may be, from any liability or ~~any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor)~~obligation under this Agreement; (ii) in connection with the ~~Borrower’s consent~~ divestiture of any Subsidiary or business of Spinco to ~~any~~ an acquiror that is not 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 ~~pursuant~~ 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 ~~Section 12.06(a) shall not~~ Agreement, including the Annexes and Schedules to this Agreement, that may be ~~required if an Event of Default shall have occurred and be continuing; provided that~~ necessary or appropriate in ~~no event shall an assignment be made~~ order to ~~a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing~~assign such Services; and (iii) ~~notwithstanding anything herein~~ in connection with the divestiture of any Subsidiary or business of Spinco to an acquiror that is a Competitor of GGP, assign 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~~ acquiror of such Subsidiary or ~~the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of~~ business its rights and obligations as a recipient with respect to the Services provided to such divested Subsidiary or ~~obligations hereunder is prohibited~~ 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 ~~Applicable Law; provided that~~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 ~~Administrative Agent~~ Parties shall ~~not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined~~ in good faith ~~to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and~~ negotiate any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party amendments to this Agreement, including the Annexes and Schedules 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 12.06~~, that may be necessary or appropriate in order to ensure that such assignment will not (x) ~~no assignment may be made to~~ materially and adversely affect the ~~Borrower,~~ businesses and operations of each of the ~~Collateral Manager, the Equityholder or any of~~ Parties and their respective ~~Affiliates and~~ Subsidiaries or (y) ~~no assignment~~ create a competitive disadvantage for GGP with respect to an acquiror that is a Competitor of GGP, and (iv) GGP shall not be ~~made~~ obligated to provide any ~~Defaulting Lender,~~ such assigned Services to an acquiror that is a ~~natural person~~ Competitor of GGP if the provision of such assigned Services to such acquiror would disrupt the operation of GGP’s businesses or ~~any Person that, upon becoming~~ create a ~~Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~competitive disadvantage for GGP with respect to such acquiror. (b) ~~The Borrower may not assign its rights or obligations hereunder or any interest herein without~~ In the ~~prior written consent~~ event of the ~~Administrative Agent and the Lenders.~~ (i) ~~Any Lender may~~merger, ~~without the consent~~ amalgamation or consolidation of ~~(but with notice to) the Borrower~~Spinco and another Person, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name sale of all ~~participants in~~ or substantially all of the ~~Advances held~~ assets of Spinco to another Person, (iii) the acquisition of a majority of the voting stock of Spinco by ~~it and~~ any Person or “group” (within the ~~principal amount (and stated interest thereon~~meaning of Section 13(d)(3) of the ~~portion~~ Securities Exchange Act of 1934, as amended) or (iv) the election of, or appointment to, the board of directors of Spinco of directors constituting a majority of the ~~Advance which is~~ directors then serving if such elected or appointed directors have not been nominated as directors by the ~~subject~~ Nominating Committee of the ~~participation~~ board of directors prior to their election or appointment, then the requirement of GGP to provide Services hereunder shall automatically terminate without further action by the Parties thirty (30) days after the ~~“Participant Register”). An Advance may be participated in whole or in part only by registration~~ occurrence 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 Registerevent. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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 4 contracts

Samples: Transition Services Agreement (Howard Hughes Corp), Transition Services Agreement (General Growth Properties, Inc.), Transition Services Agreement (New GGP, Inc.)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor This Agreement shall not be ~~deemed unreasonable)) and the Administrative Agent, assign to~~ assignable by any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein Party hereto without the prior written consent of the ~~Administrative Agent and the Lenders.~~ other Party except that (ia) ~~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~~ Buyer may assign its rights and obligations under this Agreement to any ~~Person other than a Competitor; provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to~~ Affiliate of Buyer without the ~~other parties hereto for the performance~~ prior written consent of such obligations, (C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; Seller provided that such ~~Participant shall not~~ assignee continues to be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions an Affiliate of ~~Section 2.20 with respect to any Participant.~~ Buyer; (iib) ~~In the event that any Lender sells participations in any portion of~~ Seller may assign its rights and obligations ~~hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name~~ hereunder to any acquiror of all ~~participants~~ or substantially all of the 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 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) Buyer being obligated to pay the Purchase Price or any portion thereof to more than one Person, (ii) Buyer being required to register, or being deemed to be in violation of registration obligations with respect to, any securities under the Securities Act of 1933, as amended, or becoming subject to the reporting requirements 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 any other jurisdiction, or (iii) Buyer being deemed to be 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 this Section 6.8 shall be null and void. To the extent any assignment by Buyer of its rights or obligations hereunder to a person or entity outside the United States or Canada would result in adverse withholding tax consequences to Seller, Buyer shall pay Seller additional amounts sufficient to put Seller in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole position Seller would have occupied but for such transfer or ~~in part only by registration~~ exercise of such ~~participation on~~ rights or obligations, limited to the ~~Participant Register (and each Note~~amount of withholding pursuant to the applicable reduced withholding tax rate provided for in the applicable income tax treaty, if any, ~~shall expressly so provide). No Lender shall have any obligation to disclose all or any portion~~ between Canada and the jurisdiction of the ~~Participant Register (including~~ party exercising Buyer’s rights or subject to Buyer’s obligations, provided that the identity of any Participant or any information relating to a Participant’s interest in any rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner benefits 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 Registertreaty are available. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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 3 contracts

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

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 ~~Commitment~~Individual Lender Maximum Funding Amount); provided that 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) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~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 ~~be continuing; provided that~~ not been waived by the Lenders 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 (a), clause (b~~accordance with Section 13.01) or ~~clause~~ (hy) ~~of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make an~~ such assignment to is required by any Person (other than a Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Change in Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 13.03(g), 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 ~~12.06~~13.06, ~~(x)~~ no assignment ~~may be made~~ by any Lender to the ~~Borrower, the Collateral Manager, the Equityholder~~ Borrower or any of ~~their respective~~ its Affiliates 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 ~~(y) no assignment~~ is continuing at the time of such assignment, any Disqualified Lender shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~permitted. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Agents 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 to any Person other than a Competitor~~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, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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~~ (D) each Participant shall have agreed to be bound by this Section ~~12.06(c~~13.06(c), Section ~~12.06(e~~13.06(d), Section ~~12.09~~ 13.06(e) and Section ~~12.16~~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. ~~The Borrower agrees that~~ 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) (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; provided that such~~ Section 13.06 and (B) no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.10, 2.11, or 13.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive~~under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater ~~payment~~ amount results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as ~~non-fiduciary~~ 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 (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”)~~. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No~~ ; 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 ~~rights and~~ commitments, loans or its other obligations ~~hereunder~~under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. The entries in ~~the~~ a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~the~~ 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 ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section ~~12.02~~ 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances~~Note, if any, shall expressly so provide) and compliance with this Section ~~12.06~~13.06. The Administrative 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 and~~ Document, 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~~ 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 such Person is a Qualified ~~Purchaser~~Purchaser and a QIB. (f) Notwithstanding any other provision of this Section ~~12.06~~13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto. (g) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, any Lender (an “Existing Lender”) that assigns any or all of its Individual Lender Maximum Funding Amount to a Repackaging SPV (the “Repackaging SPV Transferred Interests”), shall: (i) continue to be subject to all the obligations of such Existing Lender which correspond to that portion of the Existing Lender’s Individual Lender Maximum Funding Amount and participations in Advances forming the Repackaging SPV Transferred Interests, such that the Existing Lender and the Repackaging SPV are jointly and severally liable for all the obligations in respect of the Repackaging SPV Transferred Interests and the Borrower shall have the corresponding rights against each of the Existing Lender and the Repackaging SPV, provided that upon any repayment of Advances to the Repackaging SPV the corresponding increase in the Individual Lender Maximum Funding Amount of the Repackaging SPV and the right of the Repackaging SPV to re-lend monies pursuant to this Agreement shall be assumed solely by the Existing Lender and not the Repackaging SPV if the Existing Lender so notifies the Borrower, the Investment Advisor and the Administrative Agent; (ii) fund the Repackaging SPV Transferred Interests in respect of that Advance by 2:00 pm (New York time) on the applicable Borrowing Date if the relevant Repackaging SPV has failed to so fund (or has confirmed that it will not be able to fund or to the extent the Existing Lender and the Repackaging SPV have otherwise agreed that Existing Lender will provide the relevant funding) on the applicable Borrowing Date; and (iii) retain exclusive control over all rights and obligations with respect to the Repackaging SPV Transferred Interests, including all rights with respect to voting, waivers, consents, modifications, amendments and any confirmations as to satisfaction of any requirements hereunder or under any Facility Document.

Appears in 3 contracts

Samples: 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) ~~Subject~~ Any Conduit Lender may, (i) with notice to the ~~conditions set forth~~ 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 ~~this Section 12.06~~clause (i) above; provided, ~~each~~ 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 Borrower (such consent not to be unreasonably withheld, ~~conditioned~~ delayed or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)~~conditioned) and with the ~~Administrative Agent~~consent of the Managing Agent for the Lender Group of which it is a member, assign to at any ~~Person~~ time all or a any portion of its rights and obligations ~~under this Agreement (including all or a portion~~ hereunder and interests herein to any Person; provided, however, that the consent of ~~its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such consent shall be deemed to have been granted by the Borrower if~~ the Borrower shall not ~~have objected~~ be required in ~~writing within seven (7) Business Days of receipt of~~ connection with any ~~such request for consent; provided, further, that:~~ assignment by a Committed Lender (i) ~~neither the Borrower’s nor the Administrative Agent’s consent~~ if an Event of Termination has occurred and is continuing or (ii) to any other Lender. (c) With respect to any assignment hereunder, (i) each such assignment shall be ~~required if the assignee is (A)~~ of a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is~~ constant, and not a ~~Competitor);~~ varying, percentage of all rights and obligations under this 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 12.06(a~~such assignment) shall ~~not be required if 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 (a)~~less than $10,000,000, ~~clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. 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~~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 ~~Borrower) an Assignment and Acceptance and~~ Administrative Agent shall maintain at its address referred to in Section 10.02 of this Agreement (or such other address of 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 Administrative Agent notified by the Administrative Agent ~~pursuant~~ to ~~Section 12.06(d~~the other parties hereto) a register as provided herein (the “Register”). The Aggregate Principal Balance and any interests therein, ~~from~~ and ~~after~~ any Assignments and Acceptances of the ~~effective date specified in each Assignment~~ Aggregate Principal Balance or any interest therein delivered to and ~~Acceptance~~accepted by the Administrative Agent, ~~the assignee thereunder~~ shall be ~~a party to this Agreement~~registered in the Register, and to the ~~extent~~ Register shall serve as a record of ownership that identifies the owner of the Aggregate Principal Balances and any interest ~~assigned by such assigning Lender, have the rights and obligations of a Lender under this Agreement~~therein. Notwithstanding any other provision of this ~~Section 12.06~~Agreement, ~~(x)~~ no ~~assignment may~~ transfer of the Aggregate Principal Balances or any interest therein shall be ~~made to~~ 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 ~~Collateral Manager~~Servicer, the ~~Equityholder~~ Administrative Agent, the Managing Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender, as the case may be, under this Agreement for all purposes of this Agreement. This Section 10.03(d) shall be construed so that the Aggregate 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 ~~of their respective Affiliates~~ Managing Agent at any reasonable time and ~~(y) no assignment shall be made~~ from time to ~~any Defaulting Lender, a natural person or any Person that,~~ time upon ~~becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~reasonable prior notice. (be) ~~The Borrower may not assign~~ Upon its ~~rights or obligations hereunder or any interest herein without the prior written consent~~ receipt of an Assignment and Acceptance, the Administrative Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the ~~Lenders~~information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. (if) Any Lender may, without the consent of ~~(but with notice to)~~ 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 hereunder (including the outstanding Loan); provided, that following the sale of a participation under this Agreement ~~to any Person other than a Competitor; provided that~~ (Ai) the obligations of such ~~Lender’s obligations under this Agreement~~ Lender shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (Ciii) the Borrower, the ~~Agents~~Administrative Agent, the ~~Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16~~. 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 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 Administrative Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees. The Borrower acknowledges and agrees that ~~each Participant~~ 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 determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to the Lenders shall be ~~entitled~~ 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 ~~benefits~~ applicable Lender under such sections other than as a result 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change change in ~~Law that occurs~~ law after the Participant acquired ~~the applicable participation~~its interest. Each Lender that sells a participation ~~agrees~~shall, at acting solely for this purpose as an agent of the ~~Borrowers’ request and expense~~Borrower, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as 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~~ each Participant and the principal ~~amount~~ amounts (and stated ~~interest thereon~~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”)~~. 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~~ ; 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 ~~rights and~~ commitments, loans, letters of credit or its other obligations ~~hereunder~~under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 ~~non-fiduciary agent~~ prior written consent of ~~the Borrower, shall maintain at its address specified in Section 12.02 or such other address as~~ the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06~~Managing Agent. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (fh) Notwithstanding any other provision of this ~~Section 12.06~~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

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

Assignability. (a) ~~Subject~~ This Agreement shall be binding upon and inure to the ~~conditions set forth in this Section 12.06, each Lender may, with the consent~~ benefit of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) Parties and ~~the Administrative Agent, assign to any Person all or a portion of its rights~~ their respective successors and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consentpermitted assigns; provided, ~~further~~however, ~~that:~~ that (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower 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 ~~Administrative Agent~~ 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~~ assignment of ~~(but with notice to) the Borrower, sell participations to Participants in all or~~ a ~~portion of such Lender~~Party’s rights and obligations under the Separation and Distribution Agreement, this Agreement to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary 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 (or portion thereof, as applicable) 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 (Dor portion thereof, as applicable) ~~each Participant~~ or Carrier’s or Xxxx’, as applicable, ability to successfully complete such divestiture, upon the written request of Carrier or Xxxx, as applicable, UTC and Carrier or Xxxx, 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 Xxxx, 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 Xxxx, as applicable, shall have ~~agreed to be bound by this Section 12.06(c~~determined that such plan is not necessary after cooperating in good faith), ~~Section 12.06(e)~~UTC shall provide such services to such divested business (or portion thereof, ~~Section 12.09 and Section 12.16. Any agreement~~ as applicable) on the terms set out herein; provided that (a) the third party buyer, pursuant to ~~which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce~~ an agreement with Carrier or Xxxx, as applicable, assumes all obligations of Carrier or Xxxx, as applicable, under this Agreement in respect of such divested business (or portion thereof) and such applicable Services which agreement shall be in form and substance reasonably satisfactory to ~~approve any amendment~~UTC, ~~modification or waiver of any~~ and shall also specify that other than the preparation for and provision of ~~this Agreement. The Borrower agrees that each Participant shall be entitled to~~ the ~~benefits of Sections 2.09~~ applicable Services and ~~12.03 (subject to~~ any necessary interaction with the ~~requirements~~ third party buyer in connection therewith, UTC need only communicate and ~~limitations therein~~interact with Carrier or Xxxx, as applicable, and not such third party buyer, including with respect to invoicing, for which UTC shall invoice Carrier or Xxxx, as applicable, and Carrier or Xxxx, as applicable, shall remit payment to UTC, (b) notwithstanding 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 under foregoing clause (a) and in addition to (but not in duplication of) its other indemnification obligations (if any) under the Separation and Distribution Agreement, this Agreement or any other Ancillary Agreement, Carrier or Xxxx, as applicable, shall indemnify, defend and hold harmless UTC, its Subsidiaries and each of ~~this Section; provided that~~ their respective Representatives, and each of the successors and assigns of any of the foregoing, from and against any and all Liabilities relating to, arising out of or resulting from the sale, delivery or provision of any such ~~Participant shall not be entitled~~ Services to ~~receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive,~~ such third party buyer (except to the extent that such ~~entitlement to receive a greater payment~~ Liability relates to, arises out of or results from ~~a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees~~UTC’s gross negligence, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole willful misconduct 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document and each Lender hereunder, and each Participant, must at all times be an “accredited investor” as defined in paragraphs (1), (2), (3fraud), and (7c) the provision of ~~Rule 501(a) under the Securities Act~~ such applicable Services to such third party buyer shall be not be materially more burdensome to UTC, its Subsidiaries and each of their respective Representatives (~~an “Accredited Investor”) and a “qualified purchaser” as defined~~ either alone or in the ~~Investment Company Act~~ aggregate with all other Services hereunder) than the provision of such applicable Services prior to such divestiture, including by requiring no greater amount or frequency of any such Services and being subject to no greater requirements or standards (~~a “Qualified Purchaser”~~other than the segregation of the services as contemplated above)~~. Each Lender severally represents~~ ; provided, further, that under no circumstances shall 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, ~~(i)~~ burden, liability and risk associated with providing such applicable Services to Carrier or Xxxx, as applicable, prior to such divestiture, or otherwise cause any other non-de minimis disruption to or adverse impact 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 PurchaserUTC Business. (f) Notwithstanding any other provision of this Section 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 3 contracts

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

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the Administrative Agent and the Borrower (~~such consent~~ in each case not to be unreasonably ~~withheld, conditioned~~ withheld or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable~~delayed)~~) and the Administrative Agent~~, assign to ~~any Person~~ 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 Commitment); provided that ~~such consent~~ the Borrower shall be deemed to have ~~been granted~~ consented to any such assignment unless it shall object thereto by written notice to the ~~Borrower if the Borrower shall not have objected in writing~~ Administrative Agent within ~~seven~~ ten (710) Business Days ~~of receipt of any such request for consent~~after having received notice thereof; ~~provided, further,~~ provided further that: (i) ~~neither~~ the Borrower~~’s nor the Administrative Agent~~’s consent to any such assignment shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor)~~assignor; (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~16.06(a) shall not be required if an Event of Default shall have occurred and ~~be continuing; provided that~~ is continuing (and not been waived by the Lenders in accordance with Section 16.01); (iii) no ~~event~~ assignment shall ~~an assignment~~ be made to a ~~Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing~~natural person; and (~~iii~~iv) ~~notwithstanding anything herein~~ no assignment shall be made 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its ~~affiliates~~Affiliates or Subsidiaries. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent ~~and, in the case of an Assignment~~ and ~~Acceptance, to~~ the Borrower) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 16.03(g) and (j), 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 12.0616.06, 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) and 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 Mxxxx’x, 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, and 16.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that 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. (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 of all participants in the Advances held by it and the principal amount (and stated interest thereon) 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, Loans or its other obligations under this Agreement) 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. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 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 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 may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register and in accordance with this Section 16.06. (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 Commitment to any Person unless such Person is a Qualified Purchaser and a QIB.

Appears in 3 contracts

Samples: 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) ~~Subject~~ 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to any Borrower. (c) Each Lender may, with the consent of the ~~Borrower~~ Agent (such consent not to be unreasonably withheld, conditioned or delayed ~~(it being understood that the Borrower’s failure to~~ and such consent ~~to an assignment to a Competitor~~ shall not be ~~deemed unreasonable~~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 loan portfolio of such Lender (a “Portfolio Sale”)~~) and~~ ), but without the ~~Administrative Agent~~consent of any other Lender or other Person, assign to ~~any Person~~ one or more Persons all or a portion of its rights and obligations under this Credit Agreement ~~(including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment)~~and the Notes; provided that 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) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ 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 (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 Existing Loans; provided, additionally, that, as long as no Default or 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 ~~Collateral Agent~~ 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 14.8 which will survive) and be released from its obligations under this Credit Agreement (and, in the case of an Assignment and ~~Acceptance~~Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Credit Agreement, such Lender shall cease to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (yhereto). (bd) ~~The Borrower may~~ 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 ~~assign its rights or obligations hereunder or any~~ participating in the Term B Loans to assign, at par plus all accrued interest ~~herein without the prior written consent of the Administrative Agent~~ and ~~the Lenders. (i) Any Lender may~~fees, ~~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~~ 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 ~~Person~~ 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 ~~Competitor~~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 (Ai) such Lender’s obligations under this Credit Agreement (including, without limitation, its Existing Commitment to any Borrower hereunder) shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Ciii) such Lender shall remain the holder of any such Note for all purposes of this Credit Agreement, (iv) each Borrower, the ~~Agents~~Agent, ~~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,~~ Credit Agreement and (Dv) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, 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 payment results from a Change~~ the Loans or Letter of Credit reimbursement obligations in ~~Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees~~which such participant is participating, ~~at the Borrowers’ request and expense~~or (D) except as otherwise expressly provided in this Credit Agreement, ~~to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to~~ reduce any ~~Participant~~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 ~~Xxxxxx as non-fiduciary 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 of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each ~~Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the registered owner of the ~~amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents~~Loans held by such Lender. The Register shall be available for inspection by the 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 A Registered Loan (and a the 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 ~~with respect to~~ shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the ~~Advances~~Registered Note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Borrower 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 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 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 receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. (l) In the event that any Lender sells participations in the Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the “Participant Register”). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each Registered Note shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). ~~Each Lender severally represents to~~ Any participation of such Registered Loan (and the ~~Borrower~~Registered Note, (iif any, evidencing the same) may be effected only by the registration of such participation 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 PurchaserParticipant Register. (f) Notwithstanding any other provision of this Section 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 3 contracts

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

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 ~~Commitment~~Individual Lender Maximum Funding Amount); provided that 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) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~13.06(a) shall not be required if (x) a Default or an Event of Default shall have occurred (and ~~be continuing; provided that~~ not been waived by the Lenders 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 (a), clause (b~~accordance with Section 13.01) or ~~clause~~ (hy) ~~of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make an~~ such assignment to is required by any Person (other than a Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Change in Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 13.03(g), 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 ~~12.06~~13.06, ~~(x)~~ no assignment ~~may be made~~ by any Lender to the ~~Borrower, the Collateral Manager, the Equityholder~~ Borrower or any of ~~their respective~~ its Affiliates ~~and (y) no assignment~~ or any Disqualified Lender shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~permitted. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Agents 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 to any Person other than a Competitor~~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~~ such Borrower, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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~~ (D) each Participant shall have agreed to be bound by this Section ~~12.06(c~~13.06(c), Section ~~12.06(e~~13.06(d), Section ~~12.09~~ 13.06(e) and Section ~~12.16~~13.17, and (E) such Participants are not Disqualified Lenders. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. ~~The Borrower agrees that~~ 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; provided that such~~ Section 13.06 and (B) no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.10, 2.11, or 13.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive~~under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater ~~payment~~ amount results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 ~~Xxxxxx~~ Lender as ~~non-fiduciary~~ 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 (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”)~~. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No~~ ; 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 ~~rights and~~ commitments, loans or its other obligations ~~hereunder~~under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. The entries in ~~the~~ a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~the~~ 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 ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section ~~12.02~~ 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances~~Note, if any, shall expressly so provide) and compliance with this Section ~~12.06~~13.06. The Administrative 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 and~~ Document, 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~~ 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 such Person is a Qualified ~~Purchaser~~Purchaser and a QIB. (f) Notwithstanding any other provision of this Section ~~12.06~~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

Samples: 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) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 ~~Commitment~~Individual Lender Maximum Funding Amount); provided that 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) ~~neither~~ each of the Borrower’s ~~nor~~ 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)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~13.06(a) shall not be required if (x) an Event of Default shall have occurred (and ~~be continuing; provided that~~ not been waived by the Lenders 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 (a), clause (b~~accordance with Section 13.01) or ~~clause~~ (hy) ~~of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make an~~ such assignment ~~to any Person (other than~~ is required as a ~~Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership~~ result of any ~~of its rights or obligations hereunder is prohibited by Applicable~~ Change in Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 13.03(g), 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 ~~12.06~~13.06, ~~(x)~~ no assignment ~~may be made~~ by any Lender to the ~~Borrower, the Collateral Manager, the Equityholder~~ Borrower or any of ~~their respective~~ its Affiliates or any Disqualified Institution (except if an Event of Default has occurred and (yis continuing) ~~no assignment~~ shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~permitted. (b) ~~The~~ Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Agents 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 to any Person other than a Competitor~~Agreement; provided that (A) such participant is not a Disqualified Lender, (B) such Lender’s obligations under this Agreement shall remain unchanged, (BC) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (CD) ~~the~~ such Borrower, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (DE) each Participant shall have agreed to be bound by this Section ~~12.06(c~~13.06(c), Section ~~12.06(e~~13.06(d), Section ~~12.09~~ 13.06(e) and Section ~~12.16~~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. ~~The Borrower agrees that~~ 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; provided that such~~ Section 13.06 and (B) no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.10, 2.11, or 13.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive~~under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater ~~payment~~ amount results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as ~~non-fiduciary~~ 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 ~~thereon~~on) of the portion of the Advance which is the subject of the participation (the “Participant Register”)~~. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No~~ ; 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 ~~rights and~~ commitments, loans or its other obligations ~~hereunder~~under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in ~~the~~ a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~the~~ 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 ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section ~~12.02~~ 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances~~Note, if any, shall expressly so provide) and compliance with this Section ~~12.06~~13.06. The Administrative 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 and~~ Document, 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~~ 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~~Purchaser and 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 ~~12.06~~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

Samples: Credit Agreement (HPS Corporate Lending Fund), Credit Agreement (HPS Corporate Lending Fund), Revolving Credit and Security Agreement (HPS Corporate Lending Fund)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06,~~ This Agreement and each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign to any Person all or a portion of its Transferee's ------------- rights and obligations ~~under this Agreement~~ herein (including ~~all or a portion~~ 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 ~~its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided~~ the Rating Agencies that such ~~consent shall be deemed to have been granted by~~ assignment will not result in the ~~Borrower if~~ withdrawal or downgrade of the ~~Borrower shall not have objected in writing within seven (7) Business Days~~ then-current ratings of ~~receipt of any such request for consent~~PARCO's outstanding Commercial Paper; provided, ~~further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any~~ that -------- no such ~~assignment~~ 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 ~~assignee is (A) a Lender~~ Commercial Paper. Each assignor of Receivables or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) interest therein shall not be required if 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 (a), clause (b) or clause (h) 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 notify the Administrative Agent and the Transferor of any such assignment; provided, that no such notice shall be -------- required if such ~~Xxxxxx makes~~ assignment is made by PARCO to any other Transferee hereunder or to any Transferee that is a ~~reasonable determination that its ownership~~ 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 or participant any information, relating to the Transferor or the Receivables, which was furnished to such assignor by or on behalf of ~~its rights~~ the Transferor or ~~obligations hereunder is prohibited~~ by ~~Applicable Law~~the Administrative Agent; provided that, ~~the Administrative Agent shall not disclose~~ prior to any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 12.06(d), from and after the effective date specified in each Assignment and Acceptancedisclosure, the assignee ~~thereunder shall be a party~~ or participant agrees -------- to ~~this Agreement, and~~ preserve the confidentiality of any confidential information relating to the ~~extent~~ Transferor received by it from any of the ~~interest assigned by such assigning Lender, have~~ foregoing entities. (b) This Agreement and the rights and obligations of ~~a Lender under this Agreement. Notwithstanding~~ the Administrative Agent herein shall be assignable by the Administrative Agent and its successors and assigns; provided that any ~~other provision of this Section 12.06, (x) no assignment may be made to~~ costs incurred by the ~~Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no~~ Administrative Agent in -------- connection with such assignment shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any~~ for the account of the ~~foregoing Persons described in this clause (y)~~Administrative Agent. (bc) The ~~Borrower~~ Transferor may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative ~~Agent and the Lenders. (i) Any Lender may~~Agent, ~~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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall will not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 Registerunreasonably 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 ~~non-fiduciary agent~~ rights of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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) 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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 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 an Accredited Investor and a Qualified Purchaser~~their agents. (f) Notwithstanding any other provision of this Section 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

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

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 ~~Commitment~~Individual Lender Maximum Funding Amount); provided that 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) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~13.06(a) shall not be required (other than with respect to an assignment to a MS Competitor) if (x) a Material Default or an Event of Default shall have occurred and ~~be continuing; provided that~~ is continuing (and not been waived by the Lenders 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 (a), clause (b~~accordance with Section 13.01) or ~~clause~~ (hy) ~~of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make an~~ such assignment to is required by any Person (other than a Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Change in Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 13.03(g), 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 ~~12.06~~13.06, ~~(x)~~ no assignment ~~may be made~~ by any Lender to the ~~Borrower, the Collateral Manager, the Equityholder~~ Borrower or any of ~~their respective~~ its Affiliates ~~and (y) no assignment~~ shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~permitted. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Agents and the Lenders. (i) Any Lender may, without the consent of (other than with respect to a participation to a MS Competitor), but with notice to) , the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this ~~Agreement to any Person other than a Competitor~~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~~ such Borrower, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section ~~12.06(c~~13.06(c), Section ~~12.06(e~~13.06(d), Section ~~12.09~~ 13.06(e) and Section ~~12.16~~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. ~~The Borrower agrees that~~ 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; provided that such~~ Section 13.06 and (B) no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.10, 2.11, or 13.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive~~under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater ~~payment~~ amount results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as ~~non-fiduciary~~ 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 (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”)~~. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No~~ ; 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 ~~rights and~~ commitments, loans or its other obligations ~~hereunder~~under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan or other obligation is in registered form under Section 5f.103-1 1(c) and proposed Section 1.163-5(b) of the United States Treasury Regulations. The entries in ~~the~~ a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~the~~ such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. This Section 13.06(c)(ii) shall be construed so that such commitments, loans, letters of credit or other obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code, Section 5f.103-1(c) of the United States Treasury regulations, and any other related regulations or successor provisions or regulations. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section ~~12.02~~ 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances~~Note, if any, shall expressly so provide) and compliance with this Section ~~12.06~~13.06. The Administrative 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 and~~ Document, 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~~ 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 Amounts to any Person unless such Person is a Qualified ~~Purchaser~~Purchaser and a QIB. (f) Notwithstanding any other provision of this Section ~~12.06~~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

Samples: Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund), Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund)

Assignability. (a) ~~Subject~~ Any Conduit Lender may, (i) with notice to the ~~conditions set forth~~ 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 ~~this Section 12.06~~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, ~~each~~ 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 Borrower (such consent not to be unreasonably withheld, ~~conditioned~~ delayed or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)~~conditioned) and with the ~~Administrative Agent~~consent of the Managing Agent for the Lender Group of which it is a member, assign to at any ~~Person~~ time all or a any portion of its rights and obligations ~~under this Agreement (including all or a portion~~ hereunder and interests herein to any Person; provided, however, that the consent of ~~its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such consent shall be deemed to have been granted by the Borrower if~~ the Borrower shall not ~~have objected~~ be required in ~~writing within seven~~ connection with any assignment by a Committed Lender (7i) ~~Business Days~~ if an Event of ~~receipt of~~ Termination has occurred and is continuing or (ii) to any ~~such request for consent; provided, further, that:~~other Lender. (c) With respect to any assignment hereunder (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ each such assignment shall be ~~required if the assignee is (A)~~ of a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is~~ constant, and not a ~~Competitor);~~varying, percentage of all rights and obligations under this 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 12.06(a~~such assignment) shall ~~not be required if 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 (a)~~less than $10,000,000, ~~clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. 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~~Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to the Borrower) 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 12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall 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~~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 ~~to the extent~~ any Assignments and Acceptances of the Aggregate Principal Balance or any interest ~~assigned~~ therein delivered to and accepted by ~~such assigning Lender~~the Program Agent, ~~have~~ shall be registered in the ~~rights~~ Register, and ~~obligations~~ the Register shall serve as a record of ~~a Lender under this Agreement~~ownership that identifies the owner of the Aggregate Principal Balances and any interest therein. Notwithstanding any other provision of this ~~Section 12.06~~Agreement, ~~(x)~~ no ~~assignment may~~ transfer of the Aggregate Principal Balances or any interest therein shall be ~~made to~~ 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 ~~Collateral Manager~~Servicer, the ~~Equityholder~~ 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 the Borrower or any ~~of their respective Affiliates~~ Managing Agent at any reasonable time and ~~(y) no assignment shall be made~~ from time to ~~any Defaulting Lender, a natural person or any Person that,~~ time upon ~~becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~reasonable prior notice. (be) ~~The 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 ~~Administrative Agent~~ 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)~~ 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 hereunder (including the outstanding Loan); provided that following the sale of a participation under this Agreement ~~to any Person other than a Competitor; provided that~~ (Ai) the obligations of such ~~Lender’s obligations under this Agreement~~ Lender shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (Ciii) the Borrower, the ~~Agents~~Program Agent, the ~~Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16~~. 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. The Borrower agrees that each Participant shall be entitled to~~ Agreement or 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 under clause (a) of this Sectionother Facility Documents; provided that such ~~Participant shall not be entitled to receive any greater payment under Sections 2.09~~ agreement or ~~12.03~~instrument may provide that such Lender will not, ~~with respect~~ without the consent of the Participant, agree to any ~~participation~~amendment, ~~than its participating Lender would have been entitled~~ 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 ~~receive, except~~ the Program Agent (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 a greater payment results from a Change~~ 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 ~~Law~~ no event shall the Borrower be liable to any Participant under Sections 2.11 or 2.13 for an amount in excess of that ~~occurs after the Participant acquired~~ which would be payable to the applicable ~~participation. Each~~ Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participantunder such sections. (iig) In Neither the ~~event that~~ Borrower nor the Servicer may assign any ~~Lender sells participations in any portion~~ of its rights ~~and~~ or obligations ~~hereunder, such Xxxxxx as non-fiduciary agent for~~ hereunder or any interest herein without the ~~Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon)~~ prior written consent of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (Program Agent 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 Managing 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (fh) Notwithstanding any other provision of this ~~Section 12.06~~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

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

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) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign ~~to any Person~~ all ~~or a portion~~ of its rights and obligations under this Agreement ~~(including all or a portion~~ to any of its ~~Advances Outstanding~~ 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 of its 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 seven (7) Business Days of receipt~~ divestiture of any Subsidiary or business of such ~~request for consent;~~ 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 rights and obligations as a Recipient with respect to the Services provided to such divested Subsidiary or business under this Agreement, provided, ~~further, that:~~ that (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ no such assignment shall ~~be required if~~ release Cardinal Health or CareFusion, as the ~~assignee is (A) a Lender~~ case may be, from any liability or ~~any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor);~~ obligation under this Agreement, (ii) ~~the Borrower’s consent to~~ any and all costs and expenses incurred by either Party in connection with such assignment ~~pursuant~~ (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 ~~Section 12.06(a) shall not~~ Agreement, including the Annexes and Schedules to this Agreement, that may be ~~required if an Event of Default shall have occurred and be continuing; provided that~~ necessary or appropriate in ~~no event shall an assignment be made~~ order to ~~a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing~~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) ~~notwithstanding anything herein to~~ of this proviso) shall be borne solely by the ~~contrary~~assigning Party, ~~each Lender may make an assignment to any Person~~ (~~other than a Competitor~~iii) ~~with notice to, but without~~ the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent Parties shall ~~not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined~~ in good faith ~~to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and~~ negotiate any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party amendments to this Agreement, including the Annexes and Schedules 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 12.06~~, that may be necessary or appropriate in order to ensure that such assignment will not (x) ~~no assignment may be made to~~ materially and adversely affect the ~~Borrower,~~ businesses and operations of each of the ~~Collateral Manager, the Equityholder or any of~~ Parties and their respective Affiliates ~~and~~ or (y) create a competitive disadvantage for the Provider with respect to an acquiror that is a competitor, and (iv) no ~~assignment~~ Party shall be ~~made~~ obligated to provide any ~~Defaulting Lender~~such assigned Services to an acquiror that is a competitor if the provision of such assigned Services to such acquiror would disrupt the operation of such Party’s businesses or create a competitive disadvantage for such Party with respect to such acquiror; provided, ~~a natural person or any Person~~ that, ~~upon becoming a Lender hereunder, would constitute any of~~ notwithstanding anything to the ~~foregoing Persons described~~ contrary in this ~~clause (y). (b) The Borrower may not~~ Section 11.13, no Party shall be entitled to assign ~~its~~ any rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 that relate to ~~any Person other than a Competitor;~~ Services 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~~ former Medical Products Technologies business of such obligations, (C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No Lender shall have any obligation to disclose all or any portion of the Participant Register Cardinal Health (including ~~the identity of any Participant or any information relating to a Participant’s interest in any rights~~ respiratory, infection prevention, X. Xxxxxxx and ~~obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103~~On-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 RegisterSite businesses). (d) The Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

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

Assignability. (a) ~~Subject to~~ The rights and obligations of the ~~conditions set forth~~ 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, 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 ~~Section 12.06, each Lender may, with~~ Agreement and the other Transaction Documents and/or under any Transaction without the prior written consent of the ~~Borrower (such~~ Sellers, which consent shall not to be unreasonably withheld, conditioned or delayed (~~it being understood~~ a “Restricted Transfer”); provided, however, that in no event shall any such assignment, sale or transfer be to any of the ~~Borrower’s failure to~~ parties listed on Exhibit X attached hereto or their respective Affiliates (collectively, “Prohibited Transferees”) without the prior written consent ~~to an assignment to a Competitor shall not be deemed unreasonable))~~ of the Sellers. Buyer may sell participations or synthetic interests in any interest or obligation under this Agreement and the ~~Administrative Agent, assign~~ other Transaction Documents and/or under any Transaction to ~~any Person~~ 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 Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consentas Buyer; provided, ~~further~~however, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; provided that (A) such ~~Lender~~Person’s obligations under this Agreement and the Transaction Documents shall remain unchanged, (B) such ~~Lender~~ Person shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (C) the ~~Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary 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~~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 (DA) ~~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 ~~12.06(c~~18(b), ~~Section 12.06(e)~~disclose to the assignee or participant or proposed assignee or participant, ~~Section 12.09 and Section 12.16. 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. The Borrower agrees that 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 under clause (a) of this SectionSeller Party; provided that such ~~Participant shall not be entitled~~ assignee or participant agrees to ~~receive~~ hold such information subject to the confidentiality provisions of this Agreement and any ~~greater payment under Sections 2.09 or 12.03, with respect~~ confidentiality provisions applicable to any ~~participation, than its participating Lender would have been entitled to receive, except to~~ of the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participantdocuments related thereto. (iic) ~~In the event that any Lender sells participations in any portion of its rights and obligations hereunder~~Buyer shall, ~~such Xxxxxx~~ acting for this purpose as a non-fiduciary agent of Sellers (the “Registrar”), maintain a record of ownership (the “Register”) on which is entered the name and address of all assignees of Buyer and each such assignee’s interest in the rights and obligations under this Agreement and the 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 (for federal income tax purposes, as set forth in Section 22(e)) evidenced by the ~~Borrower~~ Transaction Documents is treated as being in registered form in accordance with Section 5f.103-1(c) of the 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 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 ~~it enters~~ is entered the name and address of ~~all participants~~ each participant and such participant’s interest in the ~~Advances held by it~~ rights and obligations under this Agreement and the ~~principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation~~ other Transaction Documents (the “Participant Register”~~). An Advance may~~ ) and no participation shall be ~~participated in whole or in part only by registration of such participation~~ effective until recorded on the Participant ~~Register (and each Note~~Register; provided that, ~~if any,~~ Buyer shall ~~expressly so provide). No Lender 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 rights or obligations under this Agreement and ~~obligations hereunder~~the other Transaction Documents) to any Person except to the extent that such disclosure is necessary to establish that such rights ~~and~~ or obligations are in registered form ~~under~~ in accordance with Section 5f.103-1 1(c) of the ~~United States~~ Treasury Regulations. The entries in ~~the~~ each Participant Register shall be conclusive absent manifest error, and ~~such Lender~~ Buyer shall treat each Person whose name is recorded in ~~the~~ 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing subject to the ~~Lenders, a copy~~ provisions of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section ~~12.06~~18. (e) ~~Notwithstanding anything~~ Subject to the ~~contrary set forth herein~~ foregoing, this Agreement and the other Transaction Documents 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 or in the other Transaction Documents, express or implied, shall give to any Person, other ~~Facility Document~~ than the parties to the Transaction Documents and ~~each Lender hereunder~~their respective successors and permitted assigns, ~~and each Participant~~any benefit or any legal or equitable right, ~~must at all times be an “accredited investor” as defined in paragraphs (1)~~power, ~~(2), (3), and (7) of Rule 501(a)~~ remedy or claim under the Securities Act (an “Accredited Investor”) and a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”). 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 PurchaserTransaction Documents. (f) Notwithstanding any other provision of this Section 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

Samples: Master Repurchase Agreement (Sutherland Asset Management Corp), Master Repurchase Agreement (Sutherland Asset Management Corp)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the Administrative Agent and the Borrower (~~such consent~~ in each case not to be unreasonably ~~withheld, conditioned~~ withheld or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable~~delayed)~~) and the Administrative Agent~~, assign to ~~any Person~~ 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 Commitment); provided that ~~such consent~~ the Borrower shall be deemed to have ~~been granted~~ consented to any such assignment unless it shall object thereto by written notice to the ~~Borrower if the Borrower shall not have objected in writing~~ Administrative Agent within ~~seven~~ ten (710) Business Days ~~of receipt of any such request for consent~~after having received notice thereof; ~~provided, further,~~ provided further that: (i) ~~neither~~ the Borrower~~’s nor the Administrative Agent~~’s consent to any such assignment shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor)~~assignor; (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~16.06(a) shall not be required if an Event of Default shall have occurred and ~~be continuing; provided that~~ is continuing (and not been waived by the Lenders in accordance with Section 16.01); (iii) no ~~event~~ assignment shall ~~an assignment~~ be made to a ~~Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing~~natural person; and (~~iii~~iv) ~~notwithstanding anything herein~~ no assignment shall be made 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its ~~affiliates~~Affiliates or Subsidiaries. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent ~~and, in the case of an Assignment~~ and ~~Acceptance, to~~ the Borrower) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 16.03(g) and (j), 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 12.0616.06, 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) and 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 Xxxxx’x, 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, and 16.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that 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. (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 of all participants in the Advances held by it and the principal amount (and stated interest thereon) 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, Loans or its other obligations under this Agreement) 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. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 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 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 may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register and in accordance with this Section 16.06. (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 Commitment to any Person unless such Person is a Qualified Purchaser and a QIB.

Appears in 2 contracts

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

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the Administrative Agent and the Borrower (~~such consent~~ in each case not to be unreasonably ~~withheld, conditioned~~ withheld or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable~~delayed)~~) and the Administrative Agent~~, assign to ~~any Person~~ 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 Commitment); provided that ~~such consent~~ the Borrower shall be deemed to have ~~been granted~~ consented to any such assignment unless it shall object thereto by written notice to the ~~Borrower if the Borrower shall not have objected in writing~~ Administrative Agent within ~~seven~~ ten (710) Business Days ~~of receipt of any such request for consent~~after having received notice thereof; ~~provided, further,~~ provided further that: (i) ~~neither~~ the Borrower~~’s nor the Administrative Agent~~’s consent to any such assignment shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~11.06(a) shall not be required if an Event of Default shall have occurred and ~~be continuing; provided that~~ is continuing (and has not been waived by the Lenders 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 (a~~accordance with Section 11.01)~~, clause~~ . (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent ~~(with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower)~~ an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 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), ~~together with administrative details for~~ in each case, without the ~~applicable assignee (if such assignee is not a current Lender or an Affiliate~~ consent of ~~Citibank~~the Borrower, ~~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 Agreementor any other Person. Notwithstanding any other provision of this Section 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 12.0611.06, 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~~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 obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto. (c) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Majority 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) the Borrower, the 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 (D) each Participant shall have agreed to be bound by this Section 11.06(c) and Sections 11.09(b), 11.15 and 11.19. Sections 2.09 and 11.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that no Participant shall be entitled to any amount under Section 2.09 or 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 payment results from a 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 non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all Participants in the Advances held by it and the principal amount (and stated interest thereon) 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, Advance or its other obligations under this Agreement) 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, Advance or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Unless otherwise required by the IRS, any disclosure required by the foregoing sentence shall be made by the relevant Lender directly and solely to the IRS. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The entries in the Participant Register shall be conclusive absent manifest error. (e) The Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 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 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 Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register 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 may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register and in accordance with this Section 11.06. This Section shall 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 881(c)(2) of the Code and any related regulations (and any successor provisions). (f) 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 Commitment to any Person unless such Person is a Qualified Purchaser and a QIB.

Appears in 2 contracts

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

Assignability. (a) ~~Subject~~ 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ 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 ~~Borrower~~ Agent (such consent not to be unreasonably ~~withheld~~withheld or delayed) and, ~~conditioned~~ so long as no Event of Default has occurred and is continuing, with the consent of the Company (such consent not to be unreasonably withheld or ~~delayed (it being understood that~~ delayed), but without the ~~Borrower’s failure to~~ consent ~~to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~of any other Lender, assign to ~~any Person~~ 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 Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such consent shall be deemed to have been granted by and the ~~Borrower if the Borrower shall not have objected in writing within seven (7) Business Days of receipt of any such request for consent~~Notes; provided, ~~further~~however, ~~that:~~ that (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ 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~~ 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~~Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Credit Agreement, such Lender shall cease to ~~the Borrower~~be a party hereto). (d) By executing and delivering 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 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,~~ confirms 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. agrees as follows: (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 to any Person other than ~~a Competitor;~~ as provided ~~that (A)~~ in 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 BorrowerAssignment and Acceptance, the ~~Agents, the Collateral Administrator, the Custodian~~ assigning Lender makes no representation or warranty and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, assumes no responsibility with respect to any ~~participation~~statements, ~~than its participating~~ 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 would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request makes no representation or warranty and ~~expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20~~ assumes no responsibility with respect to the financial condition of the Borrowers or the performance or observance by the Borrowers of any ~~Participant~~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. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (de) The Administrative ~~Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower,~~ Agent shall maintain at its address ~~specified~~ referred to in Section ~~12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders,~~ 14.5 a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the Lenders and the ~~aggregate outstanding~~ Commitments of, and principal amount of the ~~Advances Outstanding 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agent and the Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Credit Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (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 12.06, 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

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

Assignability. (a) ~~Subject~~ 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to Borrower. (c) Each Lender may, with the consent of ~~the Borrower (such~~ Agent and Borrowers, which consent shall not to be unreasonably withheld, ~~conditioned or delayed (it being understood that~~ but without the ~~Borrower’s failure to~~ consent ~~to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~of any other Lender, assign to ~~any Person~~ one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such consent shall be deemed to have been granted by and the ~~Borrower if the Borrower shall not have objected in writing within seven (7) Business Days of receipt of any such request for consent~~Loan Documents; provided, ~~further, that:~~ that (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ thereto shall execute and deliver to Agent, for its acceptance and recording in the ~~Administrative Agent~~ Register (~~with~~ as defined below), an Assignment and Acceptance Agreement in the form attached hereto as Exhibit C (the “Assignment and Acceptance”), and a ~~copy~~ 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). 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 ~~Collateral Agent~~ 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 15.17 of this Agreement which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance~~Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to ~~the Borrower~~be a party hereto). (d) By executing and delivering 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 12.06(d), from and after the effective date specified in each 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 ~~be a party~~ 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 ~~extent~~ 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 ~~interest assigned~~ obligations which by ~~such~~ 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, ~~have~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the ~~rights~~ form of Exhibit C hereto, (i) accept such Assignment and ~~obligations~~ 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. ~~Notwithstanding any other provision of this Section 12.06, (x) no assignment may be made to~~ Such new promissory note or notes shall re-evidence the ~~Borrower,~~ indebtedness outstanding under the ~~Collateral Manager, the Equityholder~~ old promissory note or ~~any of their respective Affiliates~~ notes and ~~(y) no assignment~~ shall be ~~made to any Defaulting Lender~~in the aggregate principal amount of such surrendered promissory note or notes, ~~a natural person or any Person that, upon becoming a Lender hereunder, would constitute any~~ shall be dated of even date herewith and shall otherwise be in substantially the form of the ~~foregoing Persons described in this clause (y)~~promissory note or notes subject to such assignment. (bg) ~~The Borrower~~ Each Lender may ~~not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders.~~ sell participations (~~i) Any Lender may,~~ without the consent of Agent, Borrowers or any other Lender) to one or more parties, in or to all (~~but with notice to) the Borrower, sell participations to Participants in all~~ or a ~~portion~~ portion) of ~~such Lender’s~~ its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Loan Commitment or the Loans owing to ~~any Person other than a Competitor~~it); ~~provided~~ provided, that (Ai) such Lender’s obligations under this Agreement shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Ciii) ~~the Borrower~~Borrowers, ~~the Agents~~Agent, ~~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 (Div) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant. (iih) In Each Lender agrees that, without the ~~event that~~ prior written consent of Borrowers and Agent, it will not make any ~~Lender sells participations~~ assignment hereunder in any ~~portion of its rights and obligations hereunder~~manner or under any circumstances that would require registration or qualification of, ~~such Xxxxxx as non-fiduciary agent for~~ or filings in respect of, any Loan or other Obligations under the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 securities laws of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of ~~such participation for all purposes~~ America or 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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~~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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 12.06, 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

Samples: Credit Agreement (Lawson Products Inc/New/De/), Credit Agreement (Lawson Products Inc/New/De/)

Assignability. (a) ~~Subject to~~ Each Party agrees that the ~~conditions set forth in this Section 12.06, each Lender may, with the consent~~ entirety of the ~~Borrower (such consent not to be unreasonably withheld~~other Party’s unperformed rights, ~~conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~duties, ~~assign to any Person all or a portion of its rights~~ powers, benefits and obligations under this Agreement ~~(including all or~~ are assignable to a ~~portion of its Advances Outstanding or interests therein~~ commonly owned ~~by it~~affiliate, ~~together with ratable portions of its Commitment);~~ provided that ~~such consent shall be deemed~~ Party agrees 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) neither the Borrower’s nor the Administrative Agent’s consent to any accept such assignment ~~shall be required if~~ 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 ~~assignee is~~ prior written consent of Seller and the Collateral Agent (~~A) a Lender~~ as defined herein). Notwithstanding anything to the contrary herein , Seller (or any of its ~~Affiliates~~ trustees or ~~(B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a~~successors) shall ~~not be required if an Event of Default shall~~ have ~~occurred and be continuing; provided that in no event shall an assignment be made~~ the right, without any notice to a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager Buyer or any of its affiliates~~. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance~~, to freely and without limitation, assign this Agreement to any person or entity, including, without limitation, the ~~Borrower~~to Xxxxx Fargo Bank, National Association, as collateral agent for the lenders (including any successor thereto, the “Collateral Agent”) ~~an Assignment~~ under the Third Amended and ~~Acceptance~~ Restated Credit Agreement, dated as of February 13, 2008, among EMHC, Seller, certain other subsidiaries of EMHC, and the ~~applicable tax forms required by Sections 12.03(f~~financial institutions party thereto (as amended, supplemented and otherwise modified from time to time, the “Credit Agreement”). Each of Seller and Purchaser agrees and acknowledges that (i) this Agreement constitutes an “executory contract” as such term is used in Title 11 of the United States Code (as amended, the “Bankruptcy Code”), ~~together with administrative details for the applicable assignee (if such assignee~~ is not a ~~current Lender or an Affiliate~~ financial accommodations contract for purposes of ~~Citibank, N.A.). Subject to acceptance~~ the Bankruptcy Code and ~~recording thereof by the Administrative Agent~~ is capable of both assumption and assignment pursuant to ~~Section 12.06(d)~~section 365 of the Bankruptcy Code and (ii) the rights of Seller under this Agreement may be exercised (without the necessity of assumption) by Seller (or any of its trustees or successors) under the Bankruptcy Code and any applicable provisions of bankruptcy or non-bankruptcy law or by an unrelated third party, ~~from and after~~ provided, however, that in the ~~effective date specified in each Assignment and Acceptance~~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 ~~assignee thereunder~~ Initial Payment, and any additional payments on the Purchase Price, shall be ~~a party~~ returned to ~~this Agreement~~Buyer. Purchaser agrees that neither it nor any of its affiliates shall, ~~and~~ directly or indirectly, (i) object to, delay, or take any other action to ~~the extent~~ interfere, directly or indirectly, in any respect of the ~~interest assigned by such assigning Lender, have~~ exercise of any rights or powers hereunder and/or the ~~rights and obligations~~ assumption and/or assignment of ~~a Lender under~~ this ~~Agreement. Notwithstanding~~ Agreement pursuant to any provision of the Bankruptcy Code or any other provision or principle of ~~this Section 12.06~~bankruptcy or non-bankruptcy law, or (xii) ~~no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or~~ encourage any ~~of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural~~ person or ~~any Person that, upon becoming a Lender hereunder, would constitute~~ entity to do any of the ~~foregoing Persons described in this clause (y)~~foregoing. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; provided Buyer hereby acknowledges 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 12.06, any Lender may at any time pledge or Seller will 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~~ Xxxxx 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

Samples: Asset Purchase Agreement (Equity Media Holdings CORP), Asset Purchase Agreement (Equity Media Holdings CORP)

Assignability. (ai) Subject only to ~~the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower~~ Sections 21(a) (~~such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)~~ii) and ~~the Administrative Agent~~(iii), neither Bank nor Retailer may assign ~~to any Person all or a portion of~~ its rights ~~and~~ or delegate its obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent and the Lenders~~other party, which consent will not be unreasonably withheld. (iii) ~~Any Lender~~ Section 21(a)(i) to the contrary notwithstanding, Bank may, without ~~the~~ Retailer’s consent of (~~but with notice to~~i) ~~the Borrower, sell participations to Participants in~~ assign all or ~~a portion~~ part of ~~such Lender’s~~ its rights and delegate some or all of its obligations under this Agreement to ~~any Person other than a Competitor~~an affiliate; ~~provided that~~ (Aii) ~~such Lender~~engage third parties to perform some or all of Bank’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, 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, including the servicing and administration of Accounts; (Diii) ~~each Participant shall have agreed~~ assign all or some of its rights hereunder to ~~be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain~~ any person acquiring any or all Accounts after the ~~sole right to enforce this Agreement and to approve any amendment, modification~~ termination or ~~waiver of any provision~~ expiration of this Agreement~~. The Borrower agrees that 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~~iv) (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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 assign all of its rights and delegate all of its obligations ~~hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain~~ under this Agreement to a ~~register on which it enters the name~~ purchaser (or an affiliate of ~~all participants in the Advances held by it and the principal amount~~ a purchaser) (~~and stated interest thereon~~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”). 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 has been omitted pursuant to a ~~Participant’s interest in any rights~~ request for confidential treatment and ~~obligations hereunder) to any Person except to~~ has been filed separately with the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 RegisterCommission]. (diii) ~~The Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower, shall maintain at its address specified in~~ Section ~~12.02 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, each signature page hereto, each Assignment~~ its rights and ~~Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation~~ delegate all of ~~the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the Advances Outstanding 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 ~~any stated interest thereon). The entries in~~ has been filed separately with the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06Commission]. (eiv) ~~Notwithstanding anything~~ No assignment under this Section 21(a) shall (x) relieve the assigning party of any obligation hereunder or (y) be effective unless and until the assignee signs this Agreement (or documentation reasonably sufficient to bind it to the ~~contrary set forth herein~~ terms hereof) and assumes responsibility for the obligations attributable to the assigning party under this Agreement. Further, each of Bank and Retailer, as the assigning party under Sections 21(a)(ii) and (iii), respectively, shall be responsible to the non-assigning party for the costs incurred by the non-assigning party relating to any necessary changes in hardware or software which are required as a result of such assignment. Without limiting the foregoing, this Agreement is intended for the exclusive benefit of the parties hereto and their respective successors and permitted assigns, and shall not create any rights in or be enforceable by any other ~~Facility Document and each Lender hereunder~~person whomsoever, whether as third party beneficiaries or otherwise. This Agreement shall be binding on, and ~~each Participant~~enforceable against, ~~must at all times be an “accredited investor” as defined in paragraphs (1)~~the successors and permitted assigns of the respective parties. ** Confidential portions have been omitted pursuant to a request for confidential treatment by Haverty Furniture Companies, ~~(2), (3), and (7) of~~ Inc. pursuant to Rule ~~501(a)~~ 24B-2 under the Securities Exchange Act (an “Accredited Investor”) and a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”). 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 Purchaserof 1934. (f) Notwithstanding any other provision of this Section 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

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

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) The parties recognize and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, acknowledge that: : (i) ~~neither~~ Licensee’s performance hereunder will require, and the ~~Borrower’s nor~~ Company will rely upon, the ~~Administrative Agent’s consent to any such assignment shall be required if~~ exercise of the ~~assignee is (A) a Lender or any~~ special creative skills, taste, personalities, industry standing and business acumen of ~~its Affiliates or (B) managed by a Lender or any~~ the present management and of ~~its Affiliates (so long as such assignee is not a Competitor);~~ those presently in control of Licensee; (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, Jxxx Xxxxx, 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 Mxxx, would frustrate the purpose of this ~~Section 12.06(a~~Agreement and adversely affect the marketing and sale of other items of marked under the Licensed Mxxx; 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 an Event of Default~~ assigned by Licensee nor shall Licensee have ~~occurred and be continuing; provided that in no event shall an assignment be made~~ the right to a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of sublicense its rights ~~or obligations hereunder is prohibited by Applicable Law; provided that~~hereunder, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent andwithout, in ~~the case of an Assignment and Acceptance~~either case, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Company, except that Licensee may assign this Agreement, in its entirety, to a company wholly owned and controlled by Jxxx Hxxxx for such time such company is wholly owned and controlled by Jxxx Xxxxx. The Company agrees to consider, in good faith, a request by Licensee for such consent; provided, however, that in light of, inter alia, the ~~Lenders.~~ subjective nature of Licensee’s personal attributes upon which the Company will rely hereunder as described above, the Company shall have the sole discretion to refuse such request. For the purpose of this Paragraph 19.6 (~~i) Any Lender may~~and in addition to any direct assignment), ~~without~~ any direct or indirect sale or transfer, or successive sales or transfers in the ~~consent~~ aggregate, of ~~(but with notice to) the Borrower, sell participations to Participants in all or a~~ that portion of the capital stock (or interests therein) of Licensee or the voting rights of such ~~Lender~~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 ~~and obligations~~ under this Agreement ~~to any Person other than a Competitor; provided that (A) such Lender’s obligations~~ which requires the prior written consent of the Company. Any purported assignment, sublicense or transfer in violation of this Paragraph 19.6 shall be void and of no effect, shall be an event of default under this Agreement and shall ~~remain unchanged, (B) such Lender shall remain solely responsible~~ give the Company the right to the other parties hereto for the performance of such obligations, (C) the Borrower, the 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 terminate this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Licensing Agreement (Fashion House Holdings Inc), Licensing Agreement (Fashion House Holdings Inc)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)~~delayed) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 ~~seven~~ five (75) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its ~~Affiliates (so long as such assignee is not a Competitor)~~Affiliates; (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; ~~provided that, the Administrative Agent~~ and (iv) in no event shall ~~not disclose any information~~ an assignment be made to a Competitor ~~after~~ without the ~~Collateral Manager notifies the Administrative Agent that it has determined in good faith to~~ Borrower’s prior written consent unless an Event of Default shall have occurred and be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliatescontinuing. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor~~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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 ~~Borrowers’~~ Borrower’s request and expense, to use reasonable efforts to cooperate with the ~~Borrowers~~ 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Credit and Security Agreement (Diameter Credit Co), Credit and Security Agreement (Diameter Credit Co)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)~~delayed) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 ~~seven~~ five (75) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its ~~Affiliates (so long as such assignee is not a Competitor)~~Affiliates; (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ~~Xxxxxx~~ Lender makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor~~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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 ~~Borrowers’~~ Borrower’s request and expense, to use reasonable efforts to cooperate with the ~~Borrowers~~ 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 ~~Xxxxxx~~ Lender as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Credit and Security Agreement (Apollo Debt Solutions BDC), Credit and Security Agreement (Apollo Debt Solutions BDC)

Assignability. (a) ~~Subject~~ Any Lender may assign to ~~the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower~~ one or more assignees (~~such consent not~~ provided that no assignments shall be made to ~~be unreasonably withheld, conditioned~~ any Loan Party or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment~~ its Affiliates or to a ~~Competitor shall not be deemed unreasonable)~~natural Person) ~~and the Administrative Agent, assign to any Person~~ all or a portion of its rights and obligations under this Agreement (including all or a portion of its ~~Advances Outstanding~~ 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 Commitment)~~the Borrower Representative and the Administrative Agent; provided that ~~such~~ (x) no consent ~~shall be deemed to have been granted by~~ of 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) neither the Borrower’s nor~~ Representative or the Administrative ~~Agent’s consent to any such assignment~~ Agent shall be required ~~if the assignee is (A)~~ for an assignment to a Lender, an Affiliate of a Lender or ~~any~~ an Approved Fund and (y) no consent of ~~its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii)~~ the ~~Borrower’s consent to any such assignment pursuant to this Section 12.06(a)~~ Borrower Representative shall ~~not~~ be required if an Event of Default ~~shall have~~ has occurred and be is 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 (a)~~, ~~clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make~~ for an assignment to any ~~Person (~~other ~~than a Competitor) with notice to~~assignee; provided, ~~but without the consent of~~further, that the Borrower or Representative shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent if within five (5) Business Days after having received notice thereof. (b) With respect to any assignment hereunder (i) each such ~~Xxxxxx makes~~ assignment shall be of a ~~reasonable determination that its ownership~~ constant, and not a varying, percentage of ~~any of its~~ all rights or and obligations ~~hereunder is prohibited by Applicable Law; provided that~~under this Agreement, and (ii) the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. 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~~Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to ~~the Borrower) 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~~ be a ~~current Lender or an Affiliate of Citibank, N.A.~~party hereto). ~~Subject~~ At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to ~~acceptance and recording thereof~~ in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent ~~pursuant~~ to ~~Section 12.06(d~~the other parties hereto) a register as provided herein (the “Register”)~~, from~~ . The names and ~~after~~ addresses of the ~~effective date specified in each Assignment and Acceptance~~Lenders, the ~~assignee thereunder~~ 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 ~~a party to this Agreement~~registered in the Register, and to the ~~extent~~ Register shall serve as a record of ownership that identifies the owner of the Aggregate Loan Principal Balances and any interest ~~assigned by such assigning Lender, have the rights and obligations of a Lender under this Agreement~~therein. Notwithstanding any other provision of this ~~Section 12.06~~Agreement, ~~(x)~~ no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any transfer of the ~~foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder~~ Aggregate Loan Principal Balances or any interest ~~herein without~~ therein shall be effective unless and until such transfer has been recorded in the ~~prior written consent of~~ 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~~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 this Agreement. This Section 10.03(c) shall be construed so that the Aggregate Loan Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h), and 881(c) of the Code. Solely for the purposes of this Section 10.03(c), the Administrative Agent will act as a non-fiduciary agent of the Borrowers. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. (d) Upon its receipt of an Assignment and Acceptance, the 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 notice thereof to the Borrowers and to the Calculation Agent. (e) Any Lender may, without the consent of any Loan Party (~~but with notice to)~~ 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 hereunder (including the outstanding Loans); provided that following the sale of a participation under this Agreement ~~to any Person other than a Competitor; provided that~~ (Ai) the obligations of such ~~Lender’s obligations under this Agreement~~ Lender shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (Ciii) the ~~Borrower~~Borrowers, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16~~. 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 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 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~~ 2.09, 2.10, 2.11, and ~~12.03~~ 2.12 (subject to the requirements and limitations therein, including the requirements under Section ~~12.03(f~~2.12(f) (it being understood that the documentation required under Section ~~12.03(f~~2.12(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 ~~under clause~~ pursuant to paragraph (a) of this ~~Section~~Section 10.03; provided that such Participant (A) agrees to be subject to the provisions of Section 2.22 as if it were an assignee under paragraph (a) of this Section 10.03; and (B) shall not be entitled to receive any greater payment under ~~Sections 2.09~~ Section 2.09, 2.10, 2.11, or ~~12.03~~2.12, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation ~~agrees~~shall, at acting solely for this purpose as an agent of the ~~Borrowers’ request and expense~~Borrower, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as 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~~ each Participant and the principal ~~amount~~ amounts (and stated ~~interest thereon~~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”)~~. 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~~ ; 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 ~~rights and~~ commitments, loans, letters of credit or its other obligations ~~hereunder~~under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury ~~Regulations~~Regulations or as necessary for any Borrower, the Administrative Agent or the U.S. Withholding Agent to satisfy its obligations under FATCA. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary 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 12.02 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,~~ each ~~signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the~~ “~~Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the Advances Outstanding maintained by each Lender~~ Approved Participant” under this Agreement unless the assignment to such Participant has been approved by the Borrower Representative and the Administrative Agent (~~and any stated interest thereon). The entries~~ and, if applicable, the related Assigning Lender has assigned its voting rights to such Participant) as further described in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the 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 and the owner definition of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document and each Lender hereunder, and each “Approved 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”). 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. (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 12.06~~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

Samples: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 ~~Commitment~~Allocated Facility Amount); provided that 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) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~13.06(a) shall not be required if (x) a Default or an Event of Default shall have occurred (and ~~be continuing; provided that~~ not been waived by the Lenders 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 (a), clause (b~~accordance with Section 13.01) or ~~clause~~ (hy) ~~of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary~~such assignment is required by any applicable law, ~~each Lender may make an assignment to any Person (other than a Competitor) with notice to, but without the consent of, the Borrower~~ regulation or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliatesGovernmental Authority. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 13.03(g), 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 ~~12.06~~13.06, ~~(x)~~ no assignment ~~may be made~~ by any Lender to the Borrower, ~~the Collateral Manager, the Equityholder or~~ any of ~~their respective~~ its Affiliates ~~and (y) no assignment~~ or a Competitor shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~permitted. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Agents 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 to any Person other than a Competitor~~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~~ such Borrower, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section ~~12.06(c~~13.06(c), Section ~~12.06(e), Section 12.09~~ 13.06(d) and Section ~~12.16~~13.17; (E) such Participants are not Competitors. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. ~~The Borrower agrees that~~ 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; provided that such~~ Section 13.06 and (B) no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.10, 2.11, or 13.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive~~under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater ~~payment~~ amount results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 ~~Xxxxxx~~ Lender as ~~non-fiduciary~~ nonfiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). ~~No Lender shall have any obligation to disclose all or any portion~~ 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 rights and obligations hereunder) to any Person except~~ Borrower to the extent necessary for the Borrower to establish that such ~~rights and obligations are~~ commitment, loan or other obligation is in registered form under Section 5f.103-1 of the United States Treasury Regulations and Section 1.163-5 of the Proposed United States Treasury Regulations. The entries in ~~the~~ a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~the~~ 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 ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section ~~12.02~~ 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances~~Note, if any, shall expressly so provide) and compliance with this Section ~~12.06~~13.06. The Administrative 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 Allocated Facility Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section ~~12.06~~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

Samples: First Omnibus Amendment (Pennantpark Investment Corp), Revolving Credit and Security Agreement (Pennantpark Investment Corp)

Assignability. (a) ~~Subject to the conditions~~ Except as set forth in any Other Ancillary Agreement, this Agreement and each Other Ancillary Agreement shall be binding upon and inure to the benefit of the Parties hereto and thereto, respectively, and their respective successors and assigns; provided, however, that except as contemplated in this Section ~~12.06~~6.6 or as specifically provided in any Other Ancillary Agreement, ~~each Lender may, with~~ no Party hereto or thereto may assign its respective rights or delegate its respective obligations under this Agreement or any Other Ancillary Agreement without the express prior written consent of the ~~Borrower~~ other parties hereto or thereto. (b) In the event IAC desires to effect a spin-off, split-off or similar transaction (however effected) in which the equity interests of a Subsidiary of IAC holding IAC’s interest in NewCo are distributed or otherwise transferred, directly or indirectly, to the holders of one or more classes of IAC’s capital stock, then, upon IAC’s written request, NewCo, IAC and such ~~consent not~~ Subsidiary of IAC shall enter into an amendment to ~~be unreasonably withheld, conditioned or delayed~~ this Agreement to effect (~~it being understood that~~ i) the ~~Borrower’s failure to consent to an~~ assignment ~~to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign to any Person all or a portion~~ by IAC of its rights hereunder to such Subsidiary of IAC and (ii) the acceptance of such rights and assumption of IAC’s obligations hereunder by such Subsidiary of IAC (in each case of clauses (i) and (ii) effective prior to or substantially concurrently with the consummation of such transaction), and (iii) the acknowledgement by NewCo that IAC shall thereafter have no liability hereunder (except for any liability arising from any breach by IAC or relating to any actions or events occurring, in each case, on or prior to the date of the spin-off, split-off or similar transaction). (c) In the event (i) IAC desires to sell or transfer twenty percent (20%) or more of IAC’s Equity Interest during the Initial Governance Period to an unaffiliated third party or (ii) IAC determines to distribute its equity interest in NewCo to IAC’s stockholders and as a result, to IAC’s knowledge, a Person will hold twenty percent (20%) or more of the outstanding equity interests in NewCo, as a condition to any such sale, transfer or distribution, the party acquiring the twenty percent (20%) or greater equity interest described in clause (i) or (ii), as applicable, must agree in writing to assume IAC’s obligations under this Agreement (~~including~~ unless the transaction will result in the acquiring party acquiring 100% of the capital stock of NewCo). In the event IAC desires to sell or transfer any of IAC’s Equity Interest during the Initial Governance Period to an Affiliate of IAC (other than by way of a distribution to all or of IAC’s stockholders), as a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent condition to any such ~~assignment shall be required if the assignee is (A) a Lender~~ sale or ~~any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ transfer, such ~~assignee is not a Competitor); (ii) the Borrower’s consent~~ Affiliate must agree in writing to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; provided that (A) such Lenderassume IAC’s obligations under this Agreement ~~shall remain unchanged,~~ (~~B) such Lender shall remain solely responsible to~~ unless the other parties hereto for the performance of such obligations, (C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants transaction will result in the ~~Advances held by it and the principal amount (and stated interest thereon)~~ acquiring Affiliate acquiring 100% of the ~~portion~~ capital stock of ~~the Advance which is the subject of the participation (the “Participant Register”~~NewCo). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Investor Rights Agreement (ANGI Homeservices Inc.), Merger Agreement (Iac/Interactivecorp)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~13.06(a) shall not be required if (x) a Default or an Event of Default shall have occurred (and ~~be continuing; provided that~~ not been waived by the Lenders 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 (a), clause (b~~accordance with Section 13.01) or ~~clause~~ (hy) ~~of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make an~~ such assignment to is required by any Person (other than a Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Change in Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 13.03(g), 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 ~~12.06~~13.06, ~~(x)~~ no assignment ~~may be made~~ by any Lender to the ~~Borrower, the Collateral Manager, the Equityholder~~ Borrower or any of ~~their respective~~ its Affiliates ~~and (y) no assignment~~ shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~permitted. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Agents 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 to any Person other than a Competitor~~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~~ such Borrower, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section ~~12.06(c~~13.06(c), Section ~~12.06(e~~13.06(d), Section ~~12.09~~ 13.06(e) and Section ~~12.16~~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. ~~The Borrower agrees that~~ 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; provided that such~~ Section 13.06 and (B) no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.10, 2.11, or 13.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive~~under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater ~~payment~~ amount results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 ~~Xxxxxx~~ Lender as ~~non-fiduciary~~ 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 (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”)~~. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No~~ ; 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 ~~rights and~~ commitments, loans or its other obligations ~~hereunder~~under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. The entries in ~~the~~ a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~the~~ 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 ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section ~~12.02~~ 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances~~Note, if any, shall expressly so provide) and compliance with this Section ~~12.06~~13.06. The Administrative 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 Commitments. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility ~~Document and~~ Document, 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~~ 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 Commitment to any Person unless such Person is a Qualified ~~Purchaser~~Purchaser and a QIB. (f) Notwithstanding any other provision of this Section ~~12.06~~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

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

Assignability. (a) ~~Subject~~ Any Lender may assign to ~~the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower~~ one or more assignees (~~such consent not~~ provided that no assignments shall be made to ~~be unreasonably withheld, conditioned~~ any Loan Party or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment~~ its Affiliates or to a ~~Competitor shall not be deemed unreasonable)~~natural Person or, so long as no Event of Default has occurred and is continuing, to a competitor) ~~and the Administrative Agent, assign to any Person~~ all or a portion of its rights and obligations under this Agreement (including all or a portion of its ~~Advances Outstanding 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 ~~Commitment)~~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 ~~such~~ 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 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, further, that the Borrower Representative shall be deemed to have ~~been granted~~ consented to any such assignment unless it shall object thereto by written notice to the ~~Borrower if the Borrower shall not have objected in writing~~ Administrative Agent within ~~seven~~ five (75) Business Days after having received notice thereof. Notwithstanding anything in the foregoing to the contrary, the consent of ~~receipt~~ 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 ~~request for consent; provided, further, that:~~entity (which consent may be withheld in the sole discretion of the Borrower). (b) With respect to any assignment hereunder (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ each such assignment shall be ~~required if the assignee is (A)~~ of a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is~~ constant, and not a ~~Competitor);~~varying, percentage of all rights and obligations under this Agreement, and (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. 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~~Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to ~~the Borrower) 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~~ be a ~~current Lender or an Affiliate of Citibank, N.A.~~party hereto). ~~Subject~~ At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to ~~acceptance and recording thereof~~ in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent ~~pursuant~~ to ~~Section 12.06(d~~the other parties hereto) a register as provided herein (the “Register”)~~, from~~ . The names and ~~after~~ addresses of the ~~effective date specified in each Assignment and Acceptance~~Lenders, the ~~assignee thereunder~~ 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 ~~a party to this Agreement~~registered in the Register, and to the ~~extent~~ Register shall serve as a record of ownership that identifies the owner of the Aggregate Loan Principal Balances and any interest ~~assigned by such assigning Lender, have the rights and obligations of a Lender under this Agreement~~therein. Notwithstanding any other provision of this ~~Section 12.06~~Agreement, ~~(x)~~ no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any transfer of the ~~foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder~~ Aggregate Loan Principal Balances or any interest ~~herein without~~ therein shall be effective unless and until such transfer has been recorded in the ~~prior written consent of~~ 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~~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 this Agreement. This Section 10.03(c) shall be construed so that the Aggregate Loan Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the Code. Solely for the purposes of this Section 10.03(c), the Administrative Agent will act as a non-fiduciary agent of the Borrowers. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. (d) Upon its receipt of an Assignment and Acceptance, the 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 notice thereof to the Borrowers and to the Calculation Agent. (e) Any Lender may, without the consent of any Loan Party (~~but with notice to)~~ except in the ~~Borrower~~case of participations to Approved Participants as described below), 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 hereunder (including the outstanding Loans); provided that following the sale of a participation under this Agreement ~~to any Person other than a Competitor; provided that~~ (Ai) the obligations of such ~~Lender’s obligations under this Agreement~~ Lender shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (Ciii) the ~~Borrower~~Borrowers, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16~~. 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 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 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 ~~2.09~~ 2.10, 2.11, 2.12 and ~~12.03~~ 2.13 (subject to the requirements and limitations therein, including the requirements under Section ~~12.03(f~~2.13(f) (it being understood that the documentation required under Section ~~12.03(f~~2.13(f) shall be delivered to the participating ~~Lender~~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 ~~under clause~~ pursuant to paragraph (a) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.22 as if it were an assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any greater payment under Sections ~~2.09~~ 2.10, 2.11, 2.12 or ~~12.03~~2.13, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation ~~agrees~~shall, at acting solely for this purpose as an agent of the ~~Borrowers’ request and expense~~Borrower, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as 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~~ each Participant and the principal ~~amount~~ amounts (and stated ~~interest thereon~~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”)~~. 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~~ ; 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 ~~rights and~~ commitments, loans, letters of credit or its other obligations ~~hereunder~~under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 ~~non-fiduciary 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 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (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 12.06~~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

Samples: Loan Agreement (Bluerock Homes Trust, Inc.), Loan Agreement (Bluerock Residential Growth REIT, Inc.)

Assignability. ~~(a) Subject to the conditions set forth in~~ Neither party shall assign this ~~Section 12.06~~Agreement, ~~each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned~~ or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations ~~hereunder is prohibited by Applicable Law; provided that~~hereunder, whether directly or in conjunction with a change in control or ownership, merger, acquisition, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitivesale or transfer of all, ~~including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis~~ or ~~similar information prepared by the Collateral Manager~~ substantially all or any part, of ~~its affiliates. The parties to each~~ such ~~assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and~~party's business or assets or otherwise, ~~in the case~~ either voluntarily, by operation of ~~an Assignment and Acceptance~~law, ~~to the Borrower) an Assignment and Acceptance and the applicable tax forms required by Sections 12.03(f)~~or otherwise, 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent and~~ other party, which consent may be withheld in the ~~Lenders.~~ sole discretion of the other party. Notwithstanding the foregoing sentence, (i) ~~Any Lender may~~MOTOROLA without UDC's consent may assign this Agreement to an Affiliate of MOTOROLA, (ii) UDC may assign this Agreement to an Affiliate of UDC which assumes in writing (without a release of UDC) all of UDC's obligations hereunder, is incorporated under the laws of a state of the United States of America and is domiciled in the United States of America or otherwise situated so that such assignment shall not cause tax withholding or other adverse income tax consequences on payments and deliveries by UDC to MOTOROLA under this Agreement, provided that UDC first obtains MOTOROLA's consent to such assignment, which consent shall not be unreasonably withheld or delayed, and (iii) either party, without the ~~consent of (but~~ other party's consent, may assign this Agreement, in its entirety, to any person with ~~notice to) the Borrower~~whom such party merges or consolidates, ~~sell participations~~ or to ~~Participants in~~ any person who purchases all or ~~a portion~~ substantially all of the business or assets of such ~~Lender’s rights and obligations under~~ party to which this Agreement ~~to any Person other than a Competitor;~~ relates, provided that ~~(A) such Lender’s obligations under this Agreement shall remain unchanged~~the successor, ~~(B) such Lender shall remain solely responsible~~ assignee or surviving entity agrees in writing to be bound by the other parties hereto for the performance of such obligations, (C) the Borrower, the 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 acquired party's obligations under this Agreement, and (Diii) ~~each Participant~~ MOTOROLA shall have ~~agreed~~ the right without UDC's consent to ~~be bound~~ transfer any securities received by MOTOROLA under the Related Agreements subject only to the specific transfer restrictions (other than this Section ~~12.06(c)~~11.0) set forth in the Related Agreements, ~~Section 12.06(e)~~and any rights to receive payments from UDC, ~~Section 12.09~~ in any manner and ~~Section 12.16~~to any person MOTOROLA chooses. 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~~ purported assignment or ~~waiver of any provision~~ transfer in violation of this ~~Agreement. The Borrower agrees that each Participant~~ Section 11.0 shall be ~~entitled to the benefits of Sections 2.09~~ null 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 errorvoid, and the ~~Borrower~~rights and privileges granted hereunder shall not extend to the purported assignee. Except as provided above, this Agreement shall be binding upon and inure to the 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 and the owner benefit of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the Borrower, the Collateral Manager, the Collateral Agent or any Lender at any reasonable time parties and ~~from time to time upon reasonable prior notice. An Advance (~~their permitted successors 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06assigns. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: License Agreement (Universal Display Corp \Pa\), License Agreement (Universal Display Corp \Pa\)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 ~~seven~~ five (75) Business Days of receipt of any such request for consent; and provided, further, that: (i) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared been waived by the ~~Collateral Manager or any of its affiliates~~Lenders in accordance with Section 12.01). The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 12.03(g), 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 12.06, ~~(x)~~ no assignment ~~may be made~~ by any Lender to the ~~Borrower, the Collateral Manager, the Equityholder~~ Borrower or any of ~~their respective~~ its Affiliates ~~and (y) no assignment~~ shall be ~~made~~ permitted unless each Lender has been offered the opportunity to participate in any ~~Defaulting Lender,~~ such assignment on a ~~natural person or any Person that, upon becoming a Lender hereunder, would constitute any of~~ pro rata basis on the ~~foregoing Persons described in this clause (y)~~same terms. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor~~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~~ such Borrower, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section ~~12.16~~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. ~~The Borrower agrees that~~ Sections 2.09, 2.10, and 12.03 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 ~~under~~ pursuant to clause (a) of this Section; provided that ~~such~~ no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.09, 2.10, or 12.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive, except to the extent~~ under any such ~~entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired~~ Sections or provisions if the applicable ~~participation. Each Lender that sells a~~ participation ~~agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant~~had not occurred. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ~~Xxxxxx~~ Lender as ~~non-fiduciary~~ nonfiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). ~~No Lender shall have any obligation to disclose all or any portion of the~~ 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 rights and obligations hereunder) to any Person except~~ Borrower to the extent necessary for the Borrower to establish that such ~~rights and obligations are~~ commitment, loan or other obligation is in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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~~ Collateral Agent, on behalf of and acting solely for this purpose as the ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the ~~Administrative~~ Collateral Agent shall designate in writing to the Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the Lenders and the aggregate outstanding principal amount of the 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances~~Note, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility ~~Document and~~ Document, 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~~ 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 Commitment to any Person unless such Person is a Qualified ~~Purchaser~~Purchaser and a QIB. (f) Notwithstanding any other provision of this Section 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

Samples: Credit and Security Agreement (Business Development Corp of America), Credit and Security Agreement (Business Development Corp of America)

Assignability. (a) ~~Subject~~ 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to Borrower. (c) Each Lender may, with the consent of ~~the Borrower (such consent~~ Administrative Agent and, so long as no Event of Default is then continuing, Borrower, which consents shall not to be unreasonably withheld, ~~conditioned~~ but without the consent of any other Lender, assign to one or ~~delayed~~ more banks or other financial institutions all or a portion of its rights and obligations under this Agreement; provided, that (~~it being understood that~~ i) for each such assignment, the ~~Borrower’s failure~~ parties thereto shall execute and deliver to ~~consent to an assignment to a Competitor shall not be deemed unreasonable)) and the~~ Administrative Agent, ~~assign~~ 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, 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 ~~Advances Outstanding~~ Revolving Loan Commitment, or ~~interests therein owned by~~ the Loans owing to it~~, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, ~~further, that:~~ that (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Ciii) ~~the~~ Borrower, ~~the Agents~~Administrative Agent, ~~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, (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 (Dv) ~~each Participant~~ any such participant shall ~~have agreed~~ agree to be bound by ~~this~~ the confidentiality provisions set forth in Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant28 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~~manner or under any circumstances that would require registration or qualification of, ~~such Xxxxxx as non-fiduciary agent for~~ or filings in respect of, any Loan or other Liabilities under the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 securities laws of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of ~~such participation for all purposes~~ America or 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~~ such Lender may disclose any information in its possession regarding Borrower so long as ~~the non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02~~ such potential assignee or ~~such other address as the Administrative Agent shall designate in writing~~ participant agrees to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection bound by the ~~Borrower, the Collateral Manager, the Collateral Agent or any Lender at any reasonable time and from time~~ confidentiality provisions of Section 28 hereof prior 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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 receiving any such ~~pledgee or grantee for such Lender as a party hereto~~information.

Appears in 2 contracts

Samples: Loan and Security Agreement (Cobra Electronics Corp), Loan and Security Agreement (Cobra Electronics Corp)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor This Agreement shall not be ~~deemed unreasonable)~~assigned by operation of Law or otherwise without the prior written consent of GGP and Spinco, except that each Party may: (i) ~~and the Administrative Agent,~~ assign ~~to any Person~~ all ~~or a portion~~ of its rights and obligations under this Agreement ~~(including all or a portion~~ to any of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consentSubsidiaries; provided, ~~further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any~~ that no such assignment shall ~~be required if~~ release GGP or Spinco, as the ~~assignee is (A) a Lender~~ case may be, from any liability or ~~any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor)~~obligation under this Agreement; (ii) in connection with the ~~Borrower’s consent~~ divestiture of any Subsidiary or business of Spinco to ~~any~~ an acquiror that is not 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 ~~pursuant~~ 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 ~~Section 12.06(a) shall not~~ Agreement, including the Annexes and Schedules to this Agreement, that may be ~~required if an Event of Default shall have occurred and be continuing; provided that~~ necessary or appropriate in ~~no event shall an assignment be made~~ order to ~~a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing~~assign such Services; and (iii) ~~notwithstanding anything herein~~ in connection with the divestiture of any Subsidiary or business of Spinco to an acquiror that is a Competitor of GGP, assign 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~~ acquiror of such Subsidiary or ~~the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of~~ business its rights and obligations as a recipient with respect to the Services provided to such divested Subsidiary or ~~obligations hereunder is prohibited~~ 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 ~~Applicable Law; provided that~~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 ~~Administrative Agent~~ Parties shall ~~not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined~~ in good faith ~~to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and~~ negotiate any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party amendments to this Agreement, including the Annexes and Schedules 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 12.06~~, that may be necessary or appropriate in order to ensure that such assignment will not (x) ~~no assignment may be made to~~ materially and adversely affect the ~~Borrower,~~ businesses and operations of each of the ~~Collateral Manager, the Equityholder or any of~~ Parties and their respective ~~Affiliates and~~ Subsidiaries or (y) ~~no assignment~~ create a competitive disadvantage for GGP with respect to an acquiror that is a Competitor of GGP, and (iv) GGP shall not be ~~made~~ obligated to provide any ~~Defaulting Lender,~~ such assigned Services to an acquiror that is a ~~natural person~~ Competitor of GGP if the provision of such assigned Services to such acquiror would disrupt the operation of GGP’s businesses or ~~any Person that, upon becoming~~ create a ~~Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~competitive disadvantage for GGP with respect to such acquiror. (b) ~~The Borrower may not assign its rights or obligations hereunder or any interest herein without~~ in the ~~prior written consent~~ event of the ~~Administrative Agent and the Lenders.~~ (i) ~~Any Lender may~~merger, ~~without the consent~~ amalgamation or consolidation of ~~(but with notice to) the Borrower~~Spinco and another Person, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name sale of all ~~participants in~~ or substantially all of the ~~Advances held~~ assets of Spinco to another Person, (iii) the acquisition of a majority of the voting stock of Spinco by ~~it and~~ any Person or “group” (within the ~~principal amount (and stated interest thereon~~meaning of Section 13(d)(3) of the ~~portion~~ Securities Exchange Act of 1934, as amended) or (iv) the election of, or appointment to, the board of directors of Spinco of directors constituting a majority of the ~~Advance which is~~ directors then serving if such elected or appointed directors have not been nominated as directors by the ~~subject~~ Nominating Committee of the ~~participation (~~board of directors prior to their election or appointment, then the ~~“Participant Register”). An Advance may be participated in whole or in part only~~ requirement of GGP to provide Services hereunder shall automatically terminate without further action by ~~registration~~ the Parties 30 days after the occurrence 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 Registerevent. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Transition Services Agreement (Rouse Properties, Inc.), Transition Services Agreement (Rouse Properties, Inc.)

Assignability. (a) ~~Subject~~ 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 ~~conditions set forth~~ extent such transfer would result in increased costs to Borrower (including, without limitation, under Section 4 of this ~~Section 12.06, each~~ Agreement). (c) Each Lender may, with the consent of ~~the~~ Agent and Borrower (~~such consent not to be unreasonably withheld~~provided, ~~conditioned or delayed (it being understood~~ that ~~the~~ Borrower’s ~~failure to~~ consent ~~to an assignment to a Competitor~~ (i) shall not be ~~deemed unreasonable~~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)~~) and~~ , but without the ~~Administrative Agent~~consent of any other Lender, assign to ~~any Person~~ 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 Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such consent shall be deemed to have been granted by and the ~~Borrower if the Borrower shall not have objected in writing within seven (7) Business Days of receipt of any such request for consent~~Other Agreements; provided, ~~further, that:~~ that (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ thereto shall execute and deliver to Agent, for its acceptance and recording in the ~~Administrative~~ 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). 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, (~~with~~ x) the assignee thereunder shall be a ~~copy~~ party hereto, and, to the ~~Collateral Agent~~ 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 prior to such assignment pursuant to Section 23 of this Agreement which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance~~Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to ~~the Borrower) 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~~ be a ~~current Lender or an Affiliate of Citibank, N.A.~~party hereto). ~~Subject to acceptance~~ Any attempted assignment or transfer in violation of this Section 20(c) shall be null and ~~recording thereof by the Administrative Agent pursuant to Section 12.06(d), from~~ void. (d) By executing and ~~after the effective date specified in each~~ 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 ~~be a party~~ 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 ~~extent~~ 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 ~~assigned~~ 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 ~~such~~ an assigning Lender, ~~have~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the ~~rights~~ form of Exhibit D hereto, and ~~obligations~~ 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. ~~Notwithstanding any other provision of this Section 12.06, (x) no assignment may be made to~~ Such new promissory note or notes shall re-evidence the ~~Borrower,~~ indebtedness outstanding under the ~~Collateral Manager, the Equityholder~~ old promissory note or ~~any of their respective Affiliates~~ notes and ~~(y) no assignment~~ shall be ~~made to any Defaulting Lender~~in the aggregate principal amount of such surrendered promissory note or notes, ~~a natural person or any Person that, upon becoming a Lender hereunder, would constitute any~~ shall be dated of even date herewith and shall otherwise be in substantially the form of the ~~foregoing Persons described in this clause (y)~~promissory note or notes subject to such assignment. (bg) ~~The Borrower~~ Each Lender may ~~not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders.~~ sell participations (~~i) Any Lender may,~~ without the consent of Agent, Borrower or any other Lender) to one or more parties, in or to all (~~but with notice to) the Borrower, sell participations to Participants in all~~ or a ~~portion~~ portion) of ~~such Lender’s~~ 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 ~~any Person other than a Competitor~~it); ~~provided~~ provided, that (Ai) such Lender’s obligations under this Agreement shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Ciii) ~~the~~ Borrower, ~~the Agents~~Agent, ~~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 or any Other Agreement, ~~and~~ (~~D) 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 12.06(c), Section 12.06(e), Section 12.09 and Section 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 rights to approve any ~~amendment, modification~~ amendment or waiver of this Agreement or any ~~provision of this Agreement. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.09~~ Other Agreement and ~~12.03~~ (~~subject to the requirements and limitations therein, including the requirements under Section 12.03(f~~v) (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 under clause (a) of this Section; provided that any such ~~Participant~~ participant shall not be entitled to receive any greater ~~payment~~ payments under ~~Sections 2.09~~ this Agreement or ~~12.03, with respect to~~ any ~~participation,~~ Other Agreement than ~~its participating~~ such Lender would have been entitled to ~~receive, except to the extent such entitlement to~~ receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to ~~any Participant~~the 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~~manner or under any circumstances that would require registration or qualification of, ~~such Xxxxxx as non-fiduciary agent for~~ or filings in respect of, any Revolving Loan or other Liabilities under the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 securities laws of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of ~~such participation for all purposes~~ America or 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 non-fiduciary agent of the~~ such Lender may disclose any information in its possession regarding Borrower, ~~shall maintain at its address specified~~ provided that any assignee or participant or any potential assignee or participant agrees to follow and be bound by the confidentiality requirements set forth in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.0628 hereof. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Loan and Security Agreement (Apac Customer Service Inc), Loan and Security Agreement (Apac Customer Service Inc)

Assignability. This Agreement shall not be assigned or transferred by operation of Law or otherwise without the prior written consent of Navient and SLM BankCo, except that each Party may: (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign ~~to any Person~~ all ~~or a portion~~ of its rights and obligations under this Agreement ~~(including all or a portion~~ to any of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consentSubsidiaries; provided, ~~further~~that no such assignment shall release Navient or SLM BankCo, ~~that:~~as the case may be, from any liability or obligation under this Agreement; (b) in connection with 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 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) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ no such assignment shall ~~be required if~~ release Navient or SLM BankCo, as the ~~assignee is (A) a Lender~~ case may be, from any liability or ~~any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor);~~ obligation under this Agreement; (ii) ~~the Borrower’s consent to~~ any and all costs and expenses incurred by either Party in connection with such assignment ~~pursuant~~ (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 ~~Section 12.06(a) shall not~~ Agreement, including the Schedules and Exhibits hereto, that may be ~~required if an Event of Default shall have occurred and be continuing; provided that~~ necessary or appropriate in ~~no event shall an assignment be made~~ order to ~~a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing~~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) ~~notwithstanding anything herein to~~ of this proviso) shall be borne solely by the ~~contrary, each Lender may make an assignment to any Person~~ assigning Party; (~~other than a Competitor~~iii) ~~with notice to, but without~~ the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent Parties shall ~~not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined~~ in good faith ~~to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and~~ negotiate any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party amendments to this Agreement, including the Schedules and Exhibits hereto, that may be necessary or appropriate in order to ~~the extent of the interest assigned by~~ ensure that such ~~assigning Lender, have the rights and obligations of a Lender under this Agreement. Notwithstanding any other provision of this Section 12.06,~~ assignment will not (x) ~~no assignment may be made to~~ materially and adversely affect the ~~Borrower,~~ businesses and operations of each of the ~~Collateral Manager, the Equityholder or any of~~ Parties and their respective Affiliates ~~and~~ or (y) ~~no assignment shall be made to any Defaulting Lender,~~ create a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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 competitive disadvantage for the performance of such obligations, (C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, Provider with respect to an acquiror that is a competitor; and (iv) no Party shall be obligated to provide any ~~participation, than its participating Lender~~ such assigned Services to an acquiror that is a competitor if the provision of such assigned Services to such acquiror would ~~have been entitled to receive, except to~~ disrupt the ~~extent~~ operation of such ~~entitlement to receive~~ Party’s businesses or create a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 competitive disadvantage for such Party with respect to ~~any Participant~~such acquiror. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Transition Services Agreement (SLM Corp), Transition Services Agreement (Navient Corp)

Assignability. (a) ~~Subject~~ This Agreement and the Conduit Lender’s rights and obligations herein (including the outstanding Advances) shall be assignable by the Conduit Lender and its successors and assigns to an Eligible Assignee; provided that without the ~~conditions set forth in this Section 12.06, each Lender may, with the~~ prior written consent of the Borrower (~~such~~ which consent ~~not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor~~ shall not be ~~deemed unreasonable))~~ unreasonably withheld or delayed and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such which 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) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall event not be required if an Event of Default shall have occurred and be continuing) such Conduit Lender shall not assign its rights and obligations under this Agreement to any Person other than to a U.S. Affiliate of the Agent which is a special purpose entity that issues promissory notes. Each such assignor shall notify the Agent and the Borrower of any such assignment. Each such assignor may, in connection with the assignment or participation, disclose to the assignee or participant any information relating to the Borrower, including the Pledged Collateral, furnished to such assignor by or on behalf of the Borrower or by the Agent; provided ~~that in no event shall an assignment be made~~ that, prior to ~~a Competitor~~ 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~~’s prior~~ , 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 BNS and any other bank or financial institution which is also a Secondary Lender. (b) Each Secondary Lender may, with the written consent ~~unless~~ 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 ~~arising pursuant to clause (a), clause (b) or clause (h) of Section 6.01~~ shall have occurred and be continuing~~; and (iii) notwithstanding anything herein to the contrary~~), ~~each Lender may make an assignment~~ assign to any ~~Person (~~Eligible Assignee or to any other ~~than~~ Secondary Lender all or a ~~Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any~~ portion of its rights or and obligations ~~hereunder is prohibited by Applicable Law; provided that~~under this Agreement (including, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, ~~portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis~~ all or ~~similar information prepared by the Collateral Manager or any~~ a portion of its ~~affiliates~~Secondary Lender Commitment and the outstanding Advances or interests therein owned by it); provided that the Borrower’s consent to any such assignment shall not be required if the assignee is an existing Secondary Lender or a U.S. Affiliate of an existing Secondary Lender. The parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent ~~(with a copy to the Collateral Agent and, in the case of~~ an Assignment and Acceptance, to the Borrower) 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 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 ~~12.06~~9.06, ~~(x) no assignment~~ any Secondary Lender may ~~be made to the Borrower, the Collateral Manager, the Equityholder~~ at any time pledge or grant a security interest in all or any portion of ~~their respective Affiliates~~ its rights (including, without limitation, rights to payment of principal and (yYield) ~~no assignment shall be made~~ under this Agreement to ~~any Defaulting~~ secure obligations of such Secondary Lender, without notice to or consent of the Borrower or the Agent; provided that no such pledge or grant of a ~~natural person or any Person that, upon becoming a~~ security interest shall release such Secondary Lender ~~hereunder, would constitute~~ from any of ~~the foregoing Persons described in this clause (y)~~its obligations hereunder or substitute any such pledgee or grantee for such Secondary 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 Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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~~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, ~~on behalf~~ references in Sections 2.06, 2.07, 2.08, 9.03 and 9.04 and the other terms and provisions of this Agreement and ~~acting solely for this purpose~~ the other Program Documents to rates, determinations, reserve and capital adequacy requirements, accounting principles, expenses, increased costs, reduced receipts and the like as they pertain to the ~~non-fiduciary agent~~ Lender and the Secondary Lenders shall be deemed also to include those of each of its participants; provided that the Borrower shall not be required to reimburse a participant of a Secondary Lender pursuant to Sections 2.06, 2.07, 2.08, 9.03 and 9.04 in an amount in excess of the ~~Borrower,~~ amount that would have been payable to such Secondary Lender had such participation not been made. (e) The Agent shall maintain at its address specified in Section ~~12.02~~ 9.02 or such other address as the ~~Administrative~~ Agent shall designate in writing to the Lenders and Secondary Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the ~~Lenders~~ Lender and Secondary Lenders, their Secondary Lender Commitment, effective dates and Secondary Lender Stated Expiration Date, and the aggregate outstanding principal amount of the outstanding Advances ~~Outstanding maintained~~ made by each Lender and 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 ~~Collateral Manager~~Agent, the ~~Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Lender and the Secondary Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents~~ or Secondary Lender, as ~~reflected in the Register~~ applicable, hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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)~~ No interest hereunder may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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 transferred unless entered in the Investment Company Act (a “Qualified Purchaser”). 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 PurchaserRegister. (f) Notwithstanding any other provision of this Section 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

Samples: Revolving Credit and Security Agreement (Highland Distressed Opportunities, Inc.), Revolving Credit and Security Agreement (Highland Credit Strategies Fund)

Assignability. (a) ~~Subject to~~ Each Party agrees that the ~~conditions set forth in this Section 12.06, each Lender may, with the consent~~ entirety of the ~~Borrower (such consent not to be unreasonably withheld~~other Party’s unperformed rights, ~~conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~duties, ~~assign to any Person all or a portion of its rights~~ powers, benefits and obligations under this Agreement ~~(including all or~~ are assignable to a ~~portion of its Advances Outstanding or interests therein~~ commonly owned ~~by it~~affiliate, ~~together with ratable portions of its Commitment);~~ provided that ~~such consent shall be deemed~~ Party agrees 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) neither the Borrower’s nor the Administrative Agent’s consent to any accept such assignment ~~shall be required if~~ 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 ~~assignee is~~ prior written consent of Seller and the Collateral Agent (~~A) a Lender~~ as defined herein). Notwithstanding anything to the contrary herein , Seller (or any of its ~~Affiliates~~ trustees or ~~(B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a~~successors) shall ~~not be required if an Event of Default shall~~ have ~~occurred and be continuing; provided that in no event shall an assignment be made~~ the right, without any notice to a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager Buyer or any of its affiliates~~. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance~~, to freely and without limitation, assign this Agreement to any person or entity, including, without limitation, the ~~Borrower~~to Xxxxx Fargo Bank, National Association, as collateral agent for the lenders (including any successor thereto, the “Collateral Agent”) ~~an Assignment~~ under the Third Amended and ~~Acceptance~~ Restated Credit Agreement, dated as of February 13, 2008, among EMHC, Seller, certain other subsidiaries of EMHC, and the ~~applicable tax forms required by Sections 12.03(f~~financial institutions party thereto (as amended, supplemented and otherwise modified from time to time, the “Credit Agreement”). Each of Seller and Purchaser agrees and acknowledges that (i) this Agreement constitutes an “executory contract” as such term is used in Title 11 of the United States Code (as amended, the “Bankruptcy Code”), ~~together with administrative details for the applicable assignee (if such assignee~~ is not a ~~current Lender or an Affiliate~~ financial accommodations contract for purposes of ~~Citibank, N.A.). Subject to acceptance~~ the Bankruptcy Code and ~~recording thereof by the Administrative Agent~~ is capable of both assumption and assignment pursuant to ~~Section 12.06(d)~~section 365 of the Bankruptcy Code and (ii) the rights of Seller under this Agreement may be exercised (without the necessity of assumption) by Seller (or any of its trustees or successors) under the Bankruptcy Code and any applicable provisions of bankruptcy or non-bankruptcy law or by an unrelated third party, ~~from and after~~ provided, however, that in the ~~effective date specified in each Assignment and Acceptance~~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 ~~assignee thereunder~~ Initial Payment, and any additional payments on the Purchase Price, shall be ~~a party~~ returned to ~~this Agreement~~Buyer. Purchaser agrees that neither it nor any of its affiliates shall, ~~and~~ directly or indirectly, (i) object to, delay, or take any other action to ~~the extent~~ interfere, directly or indirectly, in any respect of the ~~interest assigned by such assigning Lender, have~~ exercise of any rights or powers hereunder and/or the ~~rights and obligations~~ assumption and/or assignment of ~~a Lender under~~ this ~~Agreement. Notwithstanding~~ Agreement pursuant to any provision of the Bankruptcy Code or any other provision or principle of ~~this Section 12.06~~bankruptcy or non-bankruptcy law, or (xii) ~~no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or~~ encourage any ~~of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural~~ person or ~~any Person that, upon becoming a Lender hereunder, would constitute~~ entity to do any of the ~~foregoing Persons described in this clause (y)~~foregoing. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; provided Buyer hereby acknowledges 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 12.06, any Lender may at any time pledge or Seller will 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~~ Xxxxx 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

Samples: Asset Purchase Agreement (Equity Media Holdings CORP), Asset Purchase Agreement (Equity Media Holdings CORP)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the Administrative Agent and the Borrower (~~such consent~~ in each case not to be unreasonably ~~withheld, conditioned~~ withheld or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable~~delayed)~~) and the Administrative Agent~~, assign to ~~any Person~~ 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 Commitment); provided that ~~such consent~~ the Borrower shall be deemed to have ~~been granted~~ consented to any such assignment unless it shall object thereto by written notice to the ~~Borrower if the Borrower shall not have objected in writing~~ Administrative Agent within ~~seven~~ ten (710) Business Days ~~of receipt of any such request for consent~~after having received notice thereof; ~~provided, further,~~ provided further that: (i) ~~neither~~ the Borrower~~’s nor the Administrative Agent~~’s consent to any such assignment shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor)~~assignor; (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~15.06(a) shall not be required if an Event of Default shall have occurred and ~~be continuing; provided that~~ is continuing (and not been waived by the Lenders 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 (a~~accordance with Section 15.01)~~, clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing~~; and (iii) ~~notwithstanding anything herein to the contrary, each Lender may make an~~ no such assignment to any Person (other than a Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall ~~not disclose any information~~ be made to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliatesnatural person. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 15.03(g), 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 12.0615.06, 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, the Administrative Agent or the Swingline Lender 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, and (D) each Participant shall have agreed to be bound by this Section 15.06(c) and Sections 15.09(b), 15.15 and 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, and 15.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that no Participant shall be entitled to any amount under Section 2.09, 2.10, or 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. (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 of all participants in the Advances held by it and the principal amount (and stated interest thereon) 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, Advances or its other obligations under this Agreement) 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, Advance or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Unless otherwise required by the IRS, any disclosure required by the foregoing sentence shall be made by the relevant Lender directly and solely to the IRS. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The entries in the Participant Register shall be conclusive absent manifest error. (d) The 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 15.02 or such other address as the 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 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 may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register and in accordance with this Section 15.06. (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 Commitment to (x) any Person that is not both a Qualified Purchaser and a QIB or (y) the Borrower or any of the Borrower’s Affiliates.

Appears in 2 contracts

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

Assignability. ~~(a) Subject~~ This Note shall be binding upon the Borrower and its successors and assigns, and shall inure to the ~~conditions set forth in~~ benefit of the Holder and its successors and assigns. The Holder has the full control and discretion to assign or transfer this ~~Section 12.06, each Lender may, with~~ Note to any transferee without the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned~~ Company or ~~delayed (~~have the shares that it ~~being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign~~ converts under this Note sent to any ~~Person all or a portion of~~ third party at its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. (i) Any Lender maysole discretion, without the consent of ~~(but with notice to)~~ the ~~Borrower~~Company. If this Note is to be transferred, ~~sell participations~~ the Holder may surrender this Note to ~~Participants in all~~ the Company, whereupon the Company shall forthwith issue and deliver upon the order of the Holder a new Note registered as the Holder may request, representing the Outstanding Balance being transferred by the Holder and, if less than the entire Outstanding Balance is being transferred, a new Note to the Holder representing the Outstanding Balance not being transferred. The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, following conversion or a redemption of any portion of ~~such Lender’s rights and obligations under~~ this Agreement to any Person other than a Competitor; 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 BorrowerNote, the ~~Agents~~Outstanding Balance represented by this Note may be different than the Principal stated on the face of this Note. If the Company fails to issue a new Note registered as the Holder may request, it shall constitute an Event of Default under the ~~Collateral Administrator, the Custodian~~ Note and the ~~Securities Intermediary and~~ Note shall then be considered owned by the ~~other Lenders shall continue~~ new Holder that Generating Alpha Ltd. has assigned this Note to ~~deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and~~ (~~D) each Participant shall have agreed to be bound by this Section 12.06(c~~"Assignee Holder")~~, Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agreesAlternatively, at the ~~Borrowers’ request~~ discretion of the Holder, in lieu of the Holder requesting that the Company issue a new Note registered as the Holder may request, the Holder of this Note may instruct the Company and ~~expense~~its transfer Agent that this Note has been transferred or assigned to an Assignee Holder and that the Assignee Holder is now the new Holder of this Note without any new Note being required to be issued by the Company to the Assignee Holder. To further clarify, if Generating Alpha Ltd. sells, assigns or transfers the Note to ~~use reasonable efforts to cooperate with~~ ABC Fund, LLC, then ABC Fund, LLC shall now be the ~~Borrowers to effectuate~~ new Holder under this Note, regardless of whether a new Note is issued by the ~~provisions of Section 2.20 with respect to any Participant. (ii) In the event that any Lender sells participations~~ Company in ~~any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters~~ the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each NoteABC Fund, 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 RegisterLLC. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Securities Purchase Agreement (Grom Social Enterprises, Inc.), Securities Purchase Agreement (Grom Social Enterprises, Inc.)

Assignability. (a) ~~Subject~~ No Obligor 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 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to the Obligors. (c) Each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign to ~~any Person~~ one or more banks or other financial institutions all or a portion of its rights and obligations under this Credit Agreement and the Notes; provided, however, that (~~including all~~ i) unless the assignee is another Lender or ~~a portion~~ an affiliate of the assignor Lender, then, each of the Administrative Agent and the Borrower shall have given its ~~Advances Outstanding~~ prior consent to such assignment (neither such consent to be unreasonably withheld, conditioned or ~~interests therein owned by it~~delayed), ~~together with ratable portions of its Commitment);~~ provided that ~~such~~ if a Default or Event of Default then exists, the Borrower's consent shall be deemed ~~to have been granted by the Borrower if the Borrower shall not have objected in writing within seven~~ waived (~~7) Business Days~~ but concurrent notice of ~~receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any~~ such assignment shall be ~~required if~~ given to the ~~assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor~~Borrower); , (ii) ~~the Borrower’s consent to any~~ for each such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ 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 Three Thousand Five Hundred Dollars ($3,500) to be paid by the assignee, (iii) no such assignment shall be for less than Five Million Dollars ($5,000,000) or, if less, the entire remaining Commitments of such Lender of the Commitments, (iv) 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 (v) 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 Revolving Credit Commitment of such Lender and all Loans of such Lender. Upon such execution and delivery of the Assignment and Acceptance to the ~~Collateral Agent~~ Administrative 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 14.8 which will survive) and be released from its obligations under this Credit Agreement (and, in the case of an Assignment and ~~Acceptance~~Acceptance covering all or the remaining portion -95- 103 of an assigning Lender's rights and obligations under this Credit Agreement, such Lender shall cease to ~~the Borrower~~be a party hereto). (d) By executing and delivering 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 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,~~ confirms 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. agrees as follows: (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 to any Person other than ~~a Competitor;~~ as provided ~~that (A)~~ in 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 BorrowerAssignment and Acceptance, the ~~Agents, the Collateral Administrator, the Custodian~~ assigning Lender makes no representation or warranty and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, assumes no responsibility with respect to any ~~participation~~statements, ~~than its participating~~ 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 would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request makes no representation or warranty and ~~expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20~~ assumes no responsibility with respect to the financial condition of the Obligors or the performance or observance by the Obligors of any ~~Participant~~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 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 Credit Agreement, (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Credit Agreement as are delegated to the 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 Credit Agreement are required to be performed by it as a Lender. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (de) The Administrative ~~Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower,~~ Agent shall maintain at its address ~~specified~~ referred to in Section ~~12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders,~~ 14.5 a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the Lenders and the ~~aggregate outstanding~~ Commitments of, and principal amount of the ~~Advances Outstanding 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~~Obligors, the ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Administrative Agent and the Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Credit Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ Obligors 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (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, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Obligors. Within five (5) Business Days after its receipt of such notice, the Obligors shall execute and deliver to the Administrative Agent in exchange for the 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 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 Administrative Agent, the Obligors or any other ~~provision~~ 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 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 Obligors 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 Obligors, the 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 Credit Agreement and (v) such Lender shall not transfer, grant, assign or sell any participation under which the participant shall have rights to approve any amendment or waiver of this Credit Agreement except to the extent such amendment or waiver would (A) extend the final maturity date or the date for the payments of any installment of fees or principal or interest of any Loans or Letter of Credit reimbursement obligations in which such participant is participating, (B) reduce the amount of any installment of principal of the Loans or Letter of Credit reimbursement obligations in which such participant is participating, (C) except as otherwise expressly provided in this Credit Agreement, reduce the interest rate applicable to the Loans or Letter of Credit reimbursement obligations in which such participant is participating, or (D) except as otherwise expressly provided in this Credit Agreement, reduce any Fees payable hereunder. (h) Each Lender agrees that, without the prior written consent of the Obligors and the Administrative 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. (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 Obligors in accordance with Section ~~12.06~~14.7. (j) Anything in this Section to the contrary notwithstanding, any Lender may ~~at any time~~ assign and pledge ~~or grant a security interest in~~ all or any portion of ~~its rights (including rights~~ the Loans and/or obligations owing to ~~payment~~ it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to -97- 105 Regulation A of ~~principal~~ the Board of Governors of the Federal Reserve System and ~~interest) under this Agreement to secure obligations of~~ any Operating Circular issued by such ~~Lender, including any pledge or security interest granted to a~~ Federal Reserve Bank, ~~without notice to or consent~~ provided that any payment in respect of such assigned Loans and/or obligations made by the Borrower or to the ~~Administrative Agent; provided that no~~ assigning and/or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower's obligations hereunder in respect of such ~~pledge or grant~~ assigned Loans and/or obligations to the extent of ~~a security interest~~ such payment. No such assignment shall release ~~such~~ the assigning and/or pledging Lender from ~~any of~~ its obligations ~~hereunder or substitute any such pledgee or grantee for such Lender as a party hereto~~hereunder.

Appears in 1 contract

Samples: Credit Agreement (Industrial Distribution Group Inc)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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~~ party shall be binding upon and the rights of the party shall inure to the benefit of permitted successors and permitted assigns of the party, provided that any ~~other provision~~ purported assignment of this ~~Section 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder~~ Agreement or any portion thereof made in violation of ~~their respective Affiliates and (y) no assignment~~ this section shall be ~~made to any Defaulting Lender~~void ab initio. This Agreement is not assignable, ~~a natural person~~ in whole or ~~any Person that~~in part, ~~upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein~~ by either party without the prior written consent of the ~~Administrative Agent~~ 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~~ provided that USGC is not in breach of ~~(but with notice to) the Borrower~~this Agreement then USGC shall be permitted to assign USGC's entire interest in this Agreement, ~~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 ~~other than~~ acquiring a ~~Competitor;~~ majority equity interest, directly or indirectly, in the Tonkin Springs Property, provided that ~~(A)~~ such ~~Lender’s obligations under this Agreement~~ assignment by USGC shall ~~remain unchanged, (B) such Lender shall remain solely responsible~~ not be effective until the assignee has agreed in a writing signed by the assignee and delivered to the other parties hereto for the performance of such obligations, (C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed NMC to be bound by ~~this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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~~ terms of this Agreement ~~and~~ in the place of USGC. USGC shall give NMC at least thirty (30) days advance written notice prior to ~~approve any amendment~~making such an assignment. Following proper assignment, ~~modification or waiver of any provision of this Agreement. The Borrower agrees that each Participant~~ the assignee shall be ~~entitled~~ liable to NMC for all obligations of USGC, whether accruing prior to or following the ~~benefits of Sections 2.09~~ assignment, and ~~12.03 (subject~~ USGC shall have continuing liability 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~~ NMC to ~~the participating Lender)) to the same~~ an extent as ~~if it were a Lender~~ provided in subsections (b) and ~~had acquired its interest by assignment under clause~~ (ac) of ~~this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03,~~ section 9.2 as if the Agreement had been terminated with respect to ~~any participation, than its participating Lender would have been entitled to receive, except to~~ USGC as of the ~~extent such entitlement to receive a greater payment results from a Change in Law that occurs after~~ date of the ~~Participant acquired~~ Assignment and this continuing liability of USGC following the ~~applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request~~ assignment shall be joint and ~~expense, to use reasonable efforts to cooperate~~ several with the ~~Borrowers~~ assignee. Following a permitted assignment by USGC, NMC shall have no further obligations under Article 4 and shall have no further obligation to ~~effectuate the provisions~~ pay for legal defense costs under section 7.6, unless NMC otherwise agrees in a writing signed by NMC. Acquisition by a Third Party, directly or indirectly, of ~~Section 2.20 with respect to any Participant. (ii) In the event that any Lender sells participations~~ a majority interest in ~~any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain~~ USGC or a ~~register on which it enters the name of all participants~~ majority equity interest in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if anyTonkin Springs Property, 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes~~ deemed an assignment 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 Registerby USGC. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Non Exclusive Technology License Agreement (U S Gold Corp)

Assignability. (a) ~~Subject~~ 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to the Borrowers. (c) Each Lender may, with the consent of the ~~Borrower~~ Agent and, prior to the occurrence of an Event of Default hereunder, the Company (such consent not to be unreasonably ~~withheld~~withheld or delayed), ~~conditioned or delayed (it being understood that~~ but without the ~~Borrower’s failure to~~ consent ~~to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~of any other Lender, assign to ~~any Person~~ 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 Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment)~~and the Revolving Notes; provided that 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) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ 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~~ 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~~Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Credit Agreement, such Lender shall cease to ~~the Borrower~~be a party hereto). (d) By executing and delivering 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 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,~~ confirms 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. agrees as follows: (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 to any Person other than ~~a Competitor;~~ as provided ~~that (A)~~ in 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 BorrowerAssignment and Acceptance, the ~~Agents, the Collateral Administrator, the Custodian~~ assigning Lender makes no representation or warranty and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, assumes no responsibility with respect to any ~~participation~~statements, ~~than its participating~~ 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 would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request makes no 66 73 representation or warranty and ~~expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20~~ assumes no responsibility with respect to the financial condition of the Borrowers or the performance or observance by the Borrowers of any ~~Participant~~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. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (de) The ~~Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower,~~ Agent shall maintain at its address ~~specified~~ referred to in Section ~~12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders,~~ 13.5 a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the Lenders and the ~~aggregate outstanding~~ Commitments of, and principal amount of the ~~Advances Outstanding 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agent and the Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Credit Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (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 12.06, 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

Samples: Credit Agreement (Penske Motorsports Inc)

Assignability. ~~(a) Subject to~~ During the ~~conditions set forth~~ term of this Agreement, except as provided in this Section ~~12.06~~and other provisions of this Agreement, ~~each Lender may~~Cardiome shall not delegate duties of performance or assign, ~~with~~ in whole or in part, rights or obligations under this Agreement without the prior written consent of ~~the Borrower (such consent~~ Lilly, not to be unreasonably withheld, ~~conditioned~~ except that no consent from Lilly will be required: 19.2.1 in the event of an assignment in connection with a merger, reorganization or ~~delayed (it being understood that~~ sale of all or substantially all of the ~~Borrower’s failure~~ assets or business of Cardiome related to ~~consent to~~ this Agreement; and 19.2.2 in the event of an assignment to ~~a Competitor~~ an Affiliate of Cardiome, and Cardiome may discharge any obligations and exercise any right hereunder through an Affiliate although Cardiome shall ~~not be deemed unreasonable)) and~~ remain ultimately responsible for the ~~Administrative Agent, assign~~ proper discharge of all obligations hereunder notwithstanding any assignment or delegation to any ~~Person all~~ such Affiliate. Any attempted delegation or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such assignment without the required written consent shall be ~~deemed~~ of no force or effect. Subject to ~~have been granted by~~ the ~~Borrower if~~ restrictions contained in the ~~Borrower shall not have objected in writing within seven (7) Business Days of receipt of any such request for consent; provided~~preceding sentence, ~~further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment~~ this Agreement shall be ~~required if~~ binding upon the ~~assignee is (A) a Lender~~ successors and assigns of Cardiome that are permitted under this Section. Subject to the terms hereof, Lilly shall have the right to sublicense or assign any of: the Lilly GED-aPC Patent Rights, Lilly Know-How or the Existing Lilly Trade Secrets; or Lilly’s rights under any agreement with [Redacted — Manufacturer] respecting the [Redacted — Manufacturer] Facility; or this Agreement or any of its ~~Affiliates or (B) managed by a Lender or any of its Affiliates (~~rights hereunder; so long as ~~such~~ each sublicensee or assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed agrees to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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 Lilly’s obligations contained in this Agreement. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Development and License Agreement (Cardiome Pharma Corp)

Assignability. (a) ~~Subject~~ This Agreement and the Investors' rights and obligations herein (including ownership of each Advance made by it) shall be assignable in whole or in part by the Investors and their successors and assigns (including, without limitation, pursuant to ~~the conditions set forth in this Section 12.06, each Lender may~~an Asset Purchase Agreement), with the ~~consent of the Borrower (such consent~~ Borrower's consent, which shall not to be unreasonably ~~withheld~~withheld or delayed, ~~conditioned or delayed (it being understood~~ provided, that the Borrower~~’s failure to~~ 's consent ~~to an assignment to a Competitor~~ shall not be ~~deemed unreasonable)~~required if (i) the assignment shall be to an Eligible Assignee or (ii) an Event of Termination or an Incipient Event of Termination has occurred and is continuing. Each such assignor shall notify the Program Agent, its Investor Agent and the ~~Administrative~~ Borrower of any such assignment. Each such assignor may, in connection with any such assignment, disclose to the assignee or potential assignee any information relating to the Borrower, the Collection Agent, any Predecessor Purchaser, the Parent or any other Originator, including the Transferred Assets furnished to such assignor by or on behalf of the Borrower, the Parent, any other Originator or by the Program Agent; provided that, prior to any such disclosure, the assignee or potential assignee agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. (b) Each Bank may assign to any ~~Person~~ Eligible Assignee or to any other Bank all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its Bank Commitment and any Advances ~~Outstanding or interests therein owned~~ made by it~~, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, ~~further~~however, that: (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ each such assignment shall be ~~required if the assignee is (A)~~ of a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is~~ constant, and not a ~~Competitor);~~varying, percentage of all rights and obligations under this 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 Agreement with respect to ~~this Section 12.06(a~~such assignment) shall ~~not be required if an Event of Default shall have occurred and be continuing; provided that~~ in no event ~~shall an assignment~~ be ~~made to a Competitor without~~ less than the ~~Borrower’s prior written consent unless an Event~~ lesser of ~~Default arising pursuant to clause~~ (~~a), clause~~ x) $10,000,000 and (by) ~~or clause (h)~~ all of ~~Section 6.01 shall have occurred and be continuing; and~~the assigning Bank's Bank Commitment, (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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the ~~Administrative~~ Program Agent (with a copy to the ~~Collateral Agent~~ assignor's Investor Agent), for its acceptance and recording in the Register, an Assignment and Acceptance Agreement, together with a processing and recordation fee of $2,500, (iv) concurrently with such assignment, such assignor Bank shall assign to such assignee Bank or other Eligible Assignee an equal percentage of its rights and obligations under its Asset Purchase Agreement (or, if such assignor Bank is Citibank, it shall arrange for such assignee Bank or other Eligible Assignee to become a party to its Asset Purchase Agreement for a maximum Principal amount equal to the assignee's Bank Commitment), and (v) Citibank may not assign any portion of its Bank Commitment to the extent that it reduces such Bank Commitment below (A) 10% of the Facility Amount minus (B) the Principal of all Advances made by CNAI. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance Agreement, (x) the assignee thereunder shall be a party to this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance Agreement, have the rights and obligations of a Bank hereunder and (y) the assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance Agreement, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. (i) Any Lender may, without the consent of (but with notice to) the Borrower, sell participations to Participants in Agreement covering all or a the remaining portion of such Lender’s rights and obligations under this Agreement to any Person other than a Competitor; 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, 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 an assigning Bank's rights and obligations under this Agreement, ~~and (D) each Participant~~ such Bank shall ~~have agreed~~ cease to be ~~bound by this Section 12.06(c~~a party hereto), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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. (dc) The ~~Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower,~~ Program Agent shall maintain at its address ~~specified~~ referred to in Section ~~12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders,~~ 11.02 of this Agreement a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and Acceptance Agreement delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the ~~Lenders~~ Banks and the Bank Commitment of, and aggregate outstanding ~~principal amount~~ Principal of Advances or interests therein owned by, each Bank from time to time (the ~~Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon~~"Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the ~~Collateral Manager~~Originators, the Program Agent, the Investor Agents, the ~~Collateral Administrator, the Custodian, the Securities Intermediary~~ Investors and the ~~Lenders shall~~ Banks may treat each ~~Person~~ person whose name is recorded in the Register as a ~~Lender and the owner of the amounts owing to it~~ Bank under ~~the Facility Documents as reflected in the Register~~ this Agreement for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ Borrower or any ~~Lender~~ Bank at any reasonable time and from time to time upon reasonable prior notice. ~~An Advance (~~Upon its receipt of an Assignment and ~~a Note~~Acceptance Agreement executed by an assigning Bank and an Eligible Assignee, the Program Agent shall, if ~~any, evidencing the same) may be assigned or sold in whole or in part only by registration of~~ such ~~assignment or sale on the Register (~~Assignment and each Note with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). Each Lender severally represents to the BorrowerAcceptance Agreement has been completed, (i) ~~on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an~~ accept such Assignment and ~~Acceptance) and~~ Acceptance Agreement, (ii) ~~on each date on which it makes an Advance hereunder, that it is an Accredited Investor~~ record the information contained therein in the Register and ~~a Qualified Purchaser~~(iii) give prompt notice thereof to the Borrower. (fd) Notwithstanding any other provision of this Section ~~12.06~~10.03, any ~~Lender~~ Bank may at any time pledge or grant a security interest in all or any portion of its rights (~~including~~ including, without limitation, rights to payment of ~~principal~~ Principal and ~~interest~~Yield) under this Agreement or under the Asset Purchase Agreement to secure obligations of such ~~Lender, including any pledge or security interest granted~~ Bank to a Federal Reserve Bank, without notice to or consent of the Borrower or the ~~Administrative~~ Program Agent; provided that no such pledge or grant of a security interest shall release ~~such Lender~~ a Bank from any of its obligations hereunder or under the Asset Purchase Agreement, as the case may be, or substitute any such pledgee or grantee for such ~~Lender~~ Bank as a party ~~hereto~~hereto or to the Asset Purchase Agreement, as the case may be. (e) Each Bank may sell participations, to one or more banks or other entities which are Eligible Assignees, in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Bank Commitment and the Advances owned by it); provided, however, that: (i) such Bank's obligations under this Agreement (including, without limitation, its Bank Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties to this Agreement for the performance of such obligations, and (iii) concurrently with such participation, the selling Bank shall sell to such bank or other entity a participation in an equal percentage of its rights and obligations under its Asset Purchase Agreement. The Agents, the other Banks and the Borrower shall have the right to continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement. Such Bank may, in connection with any such participation, disclose to participants and potential participants any information relating to the Borrower, the Collection Agent, any Predecessor Purchaser, the Parent or any other Originator, including the Transferred Assets furnished to such Bank by or on behalf of the Borrower, provided that, prior to such disclosure, such participant or potential participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. (f) This Agreement and the rights and obligations of the Program Agent herein shall be assignable by the Program Agent and its successors and assigns. (g) Neither the Borrower, the Parent, any Originator or the Collection Agent may assign its rights or obligations hereunder or any other Transaction Document or any interest herein or therein without the prior written consent of the Program Agent and each Investor Agent. (h) CAFCO may, without the consent of the Borrower, sell participations to one or more banks or other entities (each, a "Participant") in all or a portion of its rights and obligations hereunder (including the outstanding Advances); provided that following the sale of a participation under this Agreement (i) the obligations of CAFCO shall remain unchanged, (ii) CAFCO shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agent, and the Banks shall continue to deal solely and directly with CAFCO in connection with CAFCO's rights and obligations under this Agreement. Any agreement or instrument pursuant to which CAFCO sells such a participation shall provide that the Participant shall not have any right to direct the enforcement of this Agreement or the other Transaction Documents or to approve any amendment, modification or waiver of any provision of this Agreement or the other Transaction Documents; provided that such agreement or instrument may provide that CAFCO will not, without the consent of the Participant, agree to any amendment, modification or waiver that (i) reduces the amount of Principal or Yield that is payable on account of any Advance or delays any scheduled date for payment thereof or (ii) reduces any fees payable by the Borrower to the Program Agent or CAFCO's Investor Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees. The Borrower acknowledges and agrees that CAFCO's source of funds may derive in part from its Participants. Accordingly, references in Sections 2.08, 2.09, 2.10, 6.07, 9.01 and 11.04 and the other terms and provisions of this Agreement and the other Transaction Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to CAFCO shall be deemed also to include those of its Participants; provided that the Borrower shall not be required to pay higher costs, expenses and indemnification amounts pursuant to this sentence than would be required to be paid by the Borrower in the absence of the sale of any participation by CAFCO to a Participant as contemplated by this Section 11.03(h). CAFCO or the Agent may, in connection with any such participation, disclose to Participants and potential Participants any information relating to the Borrower, the Collection Agent, any Predecessor Purchaser, the Parent or the Originators, including the Transferred Assets, furnished to CAFCO or the Agent by or on behalf of the Borrower; provided that, prior to any such disclosure, such Participant or potential Participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. Any interest sold by CAFCO to a Bank or its designee under its Asset Purchase Agreement shall not be considered a participation for the purpose of this Section 11.03(h) (and the Bank or its designee shall not be considered a Participant as a result thereof). (i) For avoidance of doubt, it is agreed that Jupiter may assign its rights and obligations hereunder as an Investor to Park Avenue Receivables Company, LLC and Bank One may assign its rights and obligations hereunder as a Bank and an Investor Agent to JPMorgan Chase Bank without any Person's consent, but upon 10 days' prior written notice to the Agents, the Trustee and the Borrower. (j) Notwithstanding any other provision of this Section 11.03, none of the rights or obligations under this Agreement may be assigned in whole or in part unless as of the effective date of such assignment, the assignee is either (A) a "United States person" (within the meaning of Section 7701(a)(30) of the Code), or (B) entitled to a complete exemption from all U.S. withholding taxes with respect to payments made to such assignee under any Transaction Document.

Appears in 1 contract

Samples: Receivables Financing Agreement (Rite Aid Corp)

Assignability. (a) ~~Subject~~ The Borrower shall not have the right to assign this Agreement or any interest therein except with the ~~conditions set forth in this~~ prior written consent of the Agent and the Lenders. (b) Notwithstanding Section ~~12.06~~14.06(c) below, ~~each~~ 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 Agent and the Borrower (~~such~~ which consent will not to be unreasonably ~~withheld, conditioned~~ withheld or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable~~delayed)~~) and the Administrative Agent~~, assign to one or more financial institutions all or a portion of its respective Commitment; PROVIDED, HOWEVER, that (i) for each such assignment, the parties thereto shall execute and deliver to the Agent for acceptance and recording by the Agent in the Register (as defined below), an Assignment and Assumption Agreement substantially in the form of Exhibit "M" (each an "ASSIGNMENT AND ASSUMPTION AGREEMENT"), together with any Note subject to such assignment and a processing and recordation fee of $2,500, which, unless otherwise agreed, shall be payable by the assignor, and (ii) no such assignment shall be for less than one hundred percent (100%) of the Commitment of such Lender, 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, the Notes and the other Loan Documents such Lender shall cease to be a party hereto). Agent and each Lender agrees that in connection with any such assignment, they will exert good faith efforts to assure that Borrower and the assignment are not subject to Florida documentary stamp or transfer taxes by reason of such assignment. If however after the exertion of good faith efforts such assignment is found to be subject to such taxes, Borrower shall be obligated to pay same and any interest, penalties or fees in connection therewith. (d) The Agent shall maintain at the Principal Office a copy of each Assignment and Assumption Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitments of each Lender from time to time (the "REGISTER"). The Agent shall give notice to each Lender of any assignment. The Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Assumption 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 to the Agent. (e) Upon its receipt of an Assignment and Assumption Agreement executed by an assigning Lender, together with each Note subject to such assignment (the "SURRENDERED NOTE"), the Agent shall, if such Assignment and Assumption Agreement has been completed and is in substantially the form of Exhibit "M", (i) accept such Assignment and Assumption Agreement, (ii) record the information contained therein in the Register, (iii) give prompt notice thereof to the Borrower and (iv) revise the information set forth on Annex I to reflect the effect of such 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 acknowledge such Assignment and Assumption Agreement and 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 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 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 Surrendered Note or Surrendered Notes and incurred in connection with such assigned Commitment. (f) Each Lender may sell participations (PROVIDED, HOWEVER, that prior to selling any such participations, such Lender shall have given the prior written notice to the Agent and the Borrower of such participation) 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 ~~Advances Outstanding~~ Commitment, the Loans owing to it and the Note or ~~interests therein owned~~ Notes held by it~~, together with ratable portions of its Commitment~~); ~~provided~~ PROVIDED, HOWEVER, that 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) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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~~ 's obligations under this Agreement (including, without limitation, its Commitment to ~~any Person other than a Competitor; provided that (A~~the Borrower hereunder) ~~such Lender’s obligations under this Agreement~~ shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Ciii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the ~~Agents~~Agent, ~~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 's rights and obligations under this ~~Agreement,~~ Agreement and (Dv) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, Agreement except to the extent such ~~entitlement~~ 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 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 ~~receive a greater payment results from a Change~~ the Loans or Reimbursement Obligations in ~~Law that occurs after~~ which such participant is participating, or (D) except as otherwise expressly provided in this Agreement, reduce any fees payable to the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any ParticipantLenders hereunder. (iig) In Each Lender agrees that, without the ~~event that~~ prior written consent of the Borrower and the Agent, it will not make any ~~Lender sells participations~~ assignment hereunder in any ~~portion of its rights and obligations hereunder~~manner or under any circumstances that would require registration or qualification of, ~~such Xxxxxx as non-fiduciary agent for~~ or filings in respect of, any Loan or Note under the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 securities laws of the United States ~~Treasury Regulations. The entries~~ of America or of any other jurisdiction. (h) 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 ~~Participant Register shall be conclusive absent manifest error~~Borrower; PROVIDED, ~~and~~ HOWEVER, that prior to disclosing any such information, such Lender shall ~~treat each Person whose name is recorded in~~ receive 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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 written consent of the ~~Borrower or the Administrative~~ Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.

Appears in 1 contract

Samples: Credit Agreement (Todhunter International Inc)

Assignability. (a) ~~Subject~~ This Agreement and the Investors' rights and obligations herein (including ownership of each Receivable Interest) shall be assignable by the Investors and their successors and assigns (including, without limitation, pursuant to ~~the conditions set forth in this Section 12.06, each Lender may,~~ an Asset Purchase Agreement) with the ~~consent of the Borrower (such consent~~ Seller's consent, which shall not to be unreasonably withheld, ~~conditioned~~ delayed or ~~delayed (it being understood~~ conditioned; provided, that the ~~Borrower’s failure to~~ Seller's consent ~~to an assignment to a Competitor~~ shall not be ~~deemed unreasonable)~~required (i) if the assignment shall be to an Eligible Assignee (or any related commercial paper issuer, if such Eligible Assignee does not itself issue commercial paper) pursuant to an Asset Purchase Agreement, (ii) if there shall exist an Event of Termination or (iii) if the assignment is by an Investor or a Bank to a receivables investment company administered or sponsored by the Agent or any of its Affiliates. Each assignor of a Receivable Interest or any interest therein shall notify the Agent and the Seller of any such assignment. Each assignor of a Receivable Interest or any interest therein may, in connection with any such assignment, disclose to the assignee or potential assignee any information relating to the Seller, Servicer or any Originator, including the Receivables, furnished to such assignor by or on behalf of the Seller, Servicer, any Originator or by the 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. Upon and to the extent of such assignment by an Investor to an Eligible Assignee, (i) such Eligible Assignee shall be the owner of the assigned portion of the Capital, (ii) the related administrator for such Eligible Assignee will act as the administrator for such Eligible Assignee, with all corresponding rights and powers, express or implied, granted to the administrator hereunder or under the other Transaction Documents, (iii) such Eligible Assignee (and any related commercial paper issuer, if such Eligible Assignee does not itself issue commercial paper) and their respective liquidity support provider(s) and credit support provider(s) and other related parties shall have the ~~Administrative Agent~~benefit of all the rights and protections provided to an Investor and its Program Support Provider(s) herein and in the other Transaction Documents (including any limitation on recourse against such Eligible Assignee or related parties, any agreement not to file or join in the filing of a petition to commence an insolvency proceeding against such Eligible Assignee, and the right to assign to another Eligible Assignee as provided in this paragraph), (iv) such Eligible Assignee shall assume all (or the assigned or assumed portion) of an Investor's obligations, if any, hereunder or any other Transaction Document, and an Investor shall be released from such obligations, in each case to the extent of such assignment, and the obligations of an Investor and such Eligible Assignee shall be several and not joint, (v) all distributions in respect of the Capital shall be made to the applicable agent or administrator, as applicable, on behalf of an Investor and such Eligible Assignee on a pro rata basis according to their respective interests, (vi) the definition of the term "Investor Rate" with respect to the portion of the Capital funded with commercial paper issued by an Investor from time to time shall be determined in the manner set forth in the definition of "Investor Rate" applicable to an Investor on the basis of the interest rate or discount applicable to commercial paper issued by such Eligible Assignee (or the related commercial paper issuer, if such Eligible Assignee does not itself issue commercial paper) rather than an Investor, (vii) the defined terms and other terms and provisions of this Agreement and the other Transaction Documents shall be interpreted in accordance with the foregoing, and (viii) if requested by the Agent or the administrator with respect to the Eligible Assignee, the parties will execute and deliver such further agreements and documents and take such other actions as the Agent or such administrator may reasonably request to evidence and give effect to the foregoing. No assignment by an Investor to an Eligible Assignee of all or any portion of the Capital shall in any way diminish the related Banks' obligation under Section 2.02 to fund any purchase not funded by an Investor or such Eligible Assignee or to acquire from an Investor or such Eligible Assignee all or any portion of the Capital pursuant to Section 2.02. (b) Each Bank may assign to any ~~Person~~ Eligible Assignee or to any other Bank all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Advances Outstanding~~ Bank Commitment and any Receivable Interests or interests therein owned by it~~, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, ~~further~~however, that: (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ each such assignment shall be ~~required if the assignee is (A)~~ of a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is~~ constant, and not a ~~Competitor)~~varying, percentage of all rights and obligations under this 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 Agreement with respect to ~~this Section 12.06(a~~such assignment) shall ~~not be required if an Event of Default shall have occurred and be continuing; provided that~~ in no event ~~shall an assignment~~ be ~~made to a Competitor without~~ less than the ~~Borrower’s prior written consent unless an Event~~ lesser of ~~Default arising pursuant to clause~~ (~~a), clause~~ x) $20,000,000 and (by) ~~or clause (h)~~ all of ~~Section 6.01 shall have occurred and be continuing; and~~the assigning Bank's Bank Commitment; (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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the ~~Administrative Agent (~~Agent, for its acceptance and recording in the Register, an Assignment and Acceptance Agreement, together with a ~~copy~~ processing and recordation fee of $2,500; and (iv) concurrently with such assignment, such assignor Bank shall assign to such assignee Bank or other Eligible Assignee an equal percentage of its rights and obligations under the Asset Purchase Agreement (or, if such assignor Bank is Bank of America, it shall arrange for such assignee Bank or other Eligible Assignee to become a party to the ~~Collateral Agent~~ Asset Purchase Agreement for a maximum Capital amount equal to the assignee's Bank Commitment). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance Agreement, (x) the assignee thereunder shall be a party to this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance Agreement, have the rights and obligations of a Bank hereunder and (y) the assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance Agreement, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. (i) Any Lender may, without the consent of (but with notice to) the Borrower, sell participations to Participants in Agreement covering all or a the remaining portion of such Lender’s rights and obligations under this Agreement to any Person other than a Competitor; 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, 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 an assigning Bank's rights and obligations under this Agreement, ~~and (D) each Participant~~ such Bank shall ~~have agreed~~ cease to be ~~bound by this Section 12.06(c~~a party hereto), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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. (dc) The ~~Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower,~~ Agent shall maintain at its address ~~specified~~ referred to in Section ~~12.02 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, each signature page hereto,~~ each Assignment and Acceptance Agreement delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the ~~Lenders~~ Banks and the Bank Commitment of, and aggregate outstanding ~~principal amount~~ Capital of Receivable Interests or interests therein owned by, each Bank from time to time (the ~~Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon~~"Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrower~~Seller, the ~~Collateral Manager~~Originators, the ~~Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agent and the ~~Lenders shall~~ Banks may treat each ~~Person~~ person whose name is recorded in the Register as a ~~Lender and the owner of the amounts owing to it~~ Bank under ~~the Facility Documents as reflected in the Register~~ this Agreement for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower~~Seller, the ~~Collateral Manager, the Collateral Agent~~ Originators or any ~~Lender~~ Bank at any reasonable time and from time to time upon reasonable prior notice. ~~An Advance (~~Upon its receipt of an Assignment and ~~a Note~~Acceptance Agreement executed by an assigning Bank and an Eligible Assignee, the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). Each Lender severally represents to the BorrowerAcceptance Agreement has been completed, (i) ~~on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an~~ accept such Assignment and ~~Acceptance) and~~ Acceptance Agreement, (ii) ~~on each date on which it makes an Advance hereunder, that it is an Accredited Investor~~ record the information contained therein in the Register and ~~a Qualified Purchaser~~(iii) give prompt notice thereof to the Seller. (fd) Notwithstanding any other provision of this Section ~~12.06~~10.03, any ~~Lender~~ Bank may at any time pledge or grant a security interest in all or any portion of its rights (~~including~~ including, without limitation, rights to payment of ~~principal~~ Capital and ~~interest~~Yield) under this Agreement or under the Asset Purchase Agreement to secure obligations of such ~~Lender, including any pledge or security interest granted~~ Bank to a Federal Reserve Bank, without notice to or consent of the ~~Borrower~~ Seller or the ~~Administrative~~ Agent; provided that no such pledge or grant of a security interest shall release ~~such Lender~~ a Bank from any of its obligations hereunder or under the Asset Purchase Agreement, as the case may be, or substitute any such pledgee or grantee for such ~~Lender~~ Bank as a party ~~hereto~~hereto or to the Asset Purchase Agreement, as the case may be. (e) Each Bank may sell participations, to one or more banks or other entities, in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Bank Commitment and the Receivable Interests or interests therein owned by it); provided, however, that: (i) such Bank's obligations under this Agreement (including, without limitation, its Bank Commitment to the Seller hereunder) shall remain unchanged; (ii) such Bank shall remain solely responsible to the other parties to this Agreement for the performance of such obligations; and (iii) concurrently with such participation, the selling Bank shall sell to such bank or other entity a participation in an equal percentage of its rights and obligations under the Asset Purchase Agreement. The Agent, the other Banks and the Seller shall have the right to continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement. (f) This Agreement and the rights and obligations of the Agent herein shall be assignable by the Agent and its successors and assigns; provided, however, that the Agent agrees that it will not assign such rights and obligations to any Person other than an Affiliate of Bank of America unless: (i) the Agent determines that continued service by it (or its Affiliate) as Agent hereunder would be inconsistent with, or otherwise disadvantageous under, applicable legal, tax or regulatory restrictions; or (ii) there shall have occurred (x) an Incipient Event of Termination of the type described in Section 7.01(g) or (y) any Event of Termination, which shall be continuing; or (iii) the Seller shall have consented to such assignment (such consent not to be unreasonably withheld or delayed). (g) Neither the Seller nor any of the Originators may assign their respective rights or obligations hereunder or any interest herein without the prior written consent of the Agent. (h) The Investors may, without the consent of the Seller, sell participations to one or more banks or other entities (each, a "Participant") in all or a portion of its rights and obligations hereunder (including the outstanding Receivable Interests); provided that following the sale of a participation under this Agreement (i) the obligations of the Investors shall remain unchanged, (ii) the Investors shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Seller, the Agent, and the Banks shall continue to deal solely and directly with the Investors in connection with the Investor's rights and obligations under this Agreement. Any agreement or instrument pursuant to which the Investors 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 the Investors will not, without the consent of the Participant, agree to any amendment, modification or waiver that (i) reduces the amount of Capital or Yield that is payable on account of any Receivable Interest or delays any scheduled date for payment thereof or (ii) reduces any fees payable by the Seller to the Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees. The Seller acknowledges and agrees that the Investor's source of funds may derive in part from its Participants. Accordingly, references in Sections 2.08, 2.09, 2.10, 6.07, 9.01, 9.02 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 Investors shall be deemed also to include those of its Participants; provided that the Seller shall not be required to pay higher costs, expenses and indemnification amounts pursuant to this sentence than would be required to be paid by the Seller in the absence of the sale of any participation by the Investors to a Participant as contemplated by this Section 10.03(h). The Investors or the Agent may, in connection with any such participation, disclose to Participants and potential Participants any information relating to the Seller, Servicer or any Originator, including the Receivables, furnished to the Investors or the Agent by or on behalf of the Seller; provided that, prior to any such disclosure, such Participant or potential Participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 10.06 hereof. Any interest sold by the Investors to a Bank or its designee under the Asset Purchase Agreement shall not be considered a participation for the purpose of this Section 10.03(h) (and neither such Bank nor its designee shall be considered a Participant as a result thereof).

Appears in 1 contract

Samples: Receivables Purchase Agreement (DST Systems Inc)

Assignability. (a) ~~Subject~~ 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to any Borrower. (c) Each Lender may, with the consent of the ~~Borrower~~ Agent (such consent not to be unreasonably withheld, conditioned or delayed ~~(it being understood that the Borrower’s failure to~~ and such consent ~~to an assignment to a Competitor~~ shall not be ~~deemed unreasonable~~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 loan portfolio of such Lender (a "Portfolio Sale")~~) and~~ ), but without the ~~Administrative Agent~~consent of any other Lender or other Person, assign to ~~any Person~~ one or more Persons all or a portion of its rights and obligations under this Credit Agreement ~~(including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment)~~and the Notes; provided that 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) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ 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 (such fee being waived in the case of an Exempt Assignment), (ii) no such 118 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 Existing Loans; provided, additionally, that, as long as no Default or 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 ~~Collateral Agent~~ 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 14.8 which will survive) and be released from its obligations under this Credit Agreement (and, in the case of an Assignment and ~~Acceptance~~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). (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 ~~Borrower)~~ Term B Lenders so long as the parties provide for the termination of the Existing Commitment of each of the assigning Lenders and an ~~Assignment and Acceptance~~ 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 ~~applicable tax forms required~~ 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 ~~Sections 12.03(f), together with administrative details for the applicable assignee~~ Section 14.6(c) above. (~~if such assignee is not a current Lender or~~ e) By executing and delivering 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,~~ confirms 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. agrees as follows: (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 to any Person other than ~~a Competitor;~~ as provided ~~that (A)~~ in 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 BorrowerAssignment and Acceptance, the ~~Agents, the Collateral Administrator, the Custodian~~ assigning Lender makes no representation or warranty and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, assumes no responsibility with respect to any ~~participation~~statements, ~~than its participating~~ warranties or representations made in or in 119 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 would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request makes no representation or warranty and ~~expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20~~ assumes no responsibility with respect to the financial condition of any ~~Participant~~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. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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. (df) The ~~Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower,~~ Agent shall maintain at its address ~~specified~~ referred to in Section ~~12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders,~~ 14.5 a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the Lenders and the aggregate ~~outstanding~~ commitments of, and principal amount of the ~~Advances Outstanding 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agent and the Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Credit Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by ~~the Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (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 and each Lender hereunder, and each Participant, must at all times be an “accredited investor” as defined in paragraphs (1), (2), (3), and (7)~~ substantially the form 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”). Each Lender severally represents to the BorrowerExhibit 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 record the information contained therein in the Register and (iii) give prompt notice thereof to each date on which it makes an Advance hereunder, that it is an Accredited Investor and a Qualified Purchaser. (f) Notwithstanding any other provision of this Section 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.Borrower. Within five

Appears in 1 contract

Samples: Credit Agreement (Chiquita Brands International Inc)

Assignability. This Agreement shall not be assigned or transferred by operation of Law or otherwise without the prior written consent of NewCo and SLM BankCo, except that each Party may: (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign ~~to any Person~~ all ~~or a portion~~ of its rights and obligations under this Agreement ~~(including all or a portion~~ to any of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consentSubsidiaries; provided, ~~further~~that no such assignment shall release NewCo or SLM BankCo, ~~that:~~as the case may be, from any liability or obligation under this Agreement; (b) in connection with 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 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) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ no such assignment shall ~~be required if~~ release NewCo or SLM BankCo, as the ~~assignee is (A) a Lender~~ case may be, from any liability or ~~any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor);~~ obligation under this Agreement; (ii) ~~the Borrower’s consent to~~ any and all costs and expenses incurred by either Party in connection with such assignment ~~pursuant~~ (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 ~~Section 12.06(a) shall not~~ Agreement, including the Schedules and Exhibits hereto, that may be ~~required if an Event of Default shall have occurred and be continuing; provided that~~ necessary or appropriate in ~~no event shall an assignment be made~~ order to ~~a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing~~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 NewCo 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) ~~notwithstanding anything herein to~~ of this proviso) shall be borne solely by the ~~contrary, each Lender may make an assignment to any Person~~ assigning Party; (~~other than a Competitor~~iii) ~~with notice to, but without~~ the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent Parties shall ~~not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined~~ in good faith ~~to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and~~ negotiate any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party amendments to this Agreement, including the Schedules and Exhibits hereto, that may be necessary or appropriate in order to ~~the extent of the interest assigned by~~ ensure that such ~~assigning Lender, have the rights and obligations of a Lender under this Agreement. Notwithstanding any other provision of this Section 12.06,~~ assignment will not (x) ~~no assignment may be made to~~ materially and adversely affect the ~~Borrower,~~ businesses and operations of each of the ~~Collateral Manager, the Equityholder or any of~~ Parties and their respective Affiliates ~~and~~ or (y) ~~no assignment shall be made to any Defaulting Lender,~~ create a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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 competitive disadvantage for the performance of such obligations, (C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, Provider with respect to an acquiror that is a competitor; and (iv) no Party shall be obligated to provide any ~~participation, than its participating Lender~~ such assigned Services to an acquiror that is a competitor if the provision of such assigned Services to such acquiror would ~~have been entitled to receive, except to~~ disrupt the ~~extent~~ operation of such ~~entitlement to receive~~ Party’s businesses or create a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 competitive disadvantage for such Party with respect to ~~any Participant~~such acquiror. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Transition Services Agreement (New Corp)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (x) shall not be unreasonably withheld or delayed and (y) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~16.06(a) shall not be required if 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~~ is continuing (~~a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared been waived by the ~~Collateral Manager or any of its affiliates~~Lenders in accordance with Section 16.01). The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 16.03(g), 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 ~~12.06~~16.06, (xA) no assignment ~~may be made~~ by any Lender to the Borrower, the ~~Collateral Manager~~Parent, the ~~Equityholder~~ Collateral Manager or any of their respective Affiliates ~~and (y) no assignment~~ shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent permitted 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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. (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 Xxxxxx’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

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

Assignability. (a) ~~Subject~~ Prior to the ~~conditions set forth in this Section 12.06~~Closing, ~~each Lender may, with the consent~~ none of the ~~Borrower~~ parties hereto may assign this Agreement; provided, however, that, subject to Section 9.5, upon written notice to Seller given no later than ten (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (710) Business Days ~~of receipt of any such request for consent; provided~~prior to the Closing, ~~further, that: (i) neither~~ and with the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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~~ Seller which will not be unreasonably withheld or delayed, Buyers may assign their right to ~~clause (a), clause~~ acquire any portion of the Assets and their obligations to assume any portion of the Assumed Liabilities to one or more direct or indirect wholly-owned subsidiaries of Cott. (b) ~~or clause (h) of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to~~ After the ~~contrary~~Closing, ~~each Lender~~ neither Seller nor Cott nor the other Buyers hereto may ~~make an assignment to any Person (other than a Competitor) with notice to, but~~ assign this Agreement without the prior written consent ~~of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership~~ of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent andCott, in the case of an ~~Assignment~~ assignment by Seller, and ~~Acceptance~~Seller, in the case of an assignment by Cott or any Buyer, which consent will not be unreasonably withheld or delayed; provided, however, that the events described in (i)-(iv) below shall be deemed to be a permitted assignment and shall not require consent: (i) a change in control in or a merger by (either as the ~~Borrower~~surviving or non-surviving entity) ~~an Assignment~~ or sale of all or substantially all of the assets of either Cott or Seller, (ii) either Seller, on the one hand, and ~~Acceptance~~ Cott and the ~~applicable tax forms required by Sections 12.03(f)~~Buyers, ~~together with administrative details for~~ on the ~~applicable assignee (if such assignee is not a current Lender or an Affiliate~~ other hand, may assign all 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights hereunder to an institutional lender (meaning a commercial bank, insurance company, reputable commercial lender, investment bank or ~~obligations hereunder or any interest herein~~ a trustee for holders of debt securities) in connection with a financing from such institutional lender without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; provided that (A) such Lender’s obligations under this Agreement shall remain unchangedother, (Biii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Seller may assign all of its rights and obligations ~~hereunder, such Xxxxxx as non-fiduciary agent for~~ hereunder to the ~~Borrower shall maintain a register on which it enters the name~~ purchaser of all ~~participants in~~ or substantially all of the ~~Advances held by it~~ assets of the RC Domestic Business without the prior written consent of Cott, *[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED] and Seller remains jointly and severally liable for its obligations under Article VIII hereof and (iv) Cott and the ~~principal amount (and stated interest thereon)~~ applicable Buyer may assign all of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 its rights and obligations ~~hereunder) to any Person except~~ hereunder to the extent ~~necessary~~ that they relate solely to ~~establish that such rights and obligations are in registered form under Section 5f.103-1~~ the RC International Assets to the purchaser of all or substantially all of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent assets of the ~~Borrower, shall maintain at its address specified in Section 12.02 or such other address as~~ RC International Business without the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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 written consent of ~~the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of~~ Seller *[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED] and Cott remains jointly and severally liable for its obligations ~~hereunder or substitute any such pledgee or grantee for such Lender as a party hereto~~under Article VIII hereof.

Appears in 1 contract

Samples: Asset Purchase Agreement (Cott Corp /Cn/)

Assignability. (a) ~~Subject~~ This Agreement and the Conduit Purchasers’ rights and obligations herein (including ownership of each Asset Interest purchased by it) shall be assignable in whole or in part by the Conduit Purchasers and their successors and assigns (including, without limitation, pursuant to ~~the conditions set forth in this Section 12.06, each Lender may~~an Asset Purchase Agreement), with the ~~consent of the Borrower (such consent not to be unreasonably withheld~~Seller’s consent, ~~conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor~~ which shall not be ~~deemed unreasonable)~~unreasonably withheld or delayed, provided, that the Seller’s consent shall not be required if (i) the assignment shall be to an Eligible Assignee or (ii) an Event of Termination or an Incipient Event of Termination has occurred and is continuing. Each such assignor shall notify the Program Agent, its Group Agent and the ~~Administrative~~ Seller of any such assignment and shall be accompanied by an assignment pursuant to clause (b) below by one or more of such Conduit Purchaser’s Related Committed Purchasers to one or more of such assignee Conduit Purchaser’s Related Committed Purchasers. Each such assignor may, in connection with any such assignment, disclose to the assignee or potential assignee any information relating to the Seller, the Servicer, COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT the Facility Custodian, the Parent or the Originator (including the Collateral), furnished to such assignor by or on behalf of the Seller, the Parent, the Servicer, the Facility Custodian, the Originator or the Program Agent; provided that, prior to any such disclosure, the assignee or potential assignee agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. (b) Each Committed Purchaser may assign to any ~~Person~~ Eligible Assignee or to any other Committed Purchaser all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Advances Outstanding or interests therein owned~~ Commitment and any Asset Interests made by it~~, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, ~~further~~however, that: (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ each such assignment shall be ~~required if the assignee is (A)~~ of a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is~~ constant, and not a ~~Competitor);~~varying, percentage of all rights and obligations under this 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 12.06(a~~such assignment) shall ~~not be required if an Event of Default shall have occurred and be continuing; provided that~~ in no event ~~shall an assignment~~ be ~~made to a Competitor without~~ less than the ~~Borrower~~lesser of (x) $10,000,000 and (y) all of the assigning Committed Purchaser’s ~~prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing; and~~Commitment, (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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the ~~Administrative~~ Program Agent (with a copy to the ~~Collateral Agent~~ assignor’s Group Agent), for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, and (iv) concurrently with such assignment, such assignor Committed Purchaser shall assign to such assignee Committed Purchaser or other Eligible Assignee an equal percentage of its rights and obligations under its Asset Purchase Agreement (or, if such assignor Committed Purchaser is Citibank, it shall arrange for such assignee Committed Purchaser or other Eligible Assignee to become a party to its Asset Purchase Agreement for a maximum Capital amount equal to the assignee’s Commitment). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Committed Purchaser hereunder and (y) the assigning Committed Purchaser shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. (i) Any Lender may, without the consent of (but with notice to) the Borrower, sell participations to Participants in covering all or a the remaining portion of such Lender’s rights and obligations under this Agreement to any Person other than a Competitor; 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, 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 Lenderan assigning Committed Purchaser’s rights and obligations under this Agreement, ~~and (D) each Participant~~ such Committed Purchaser shall ~~have agreed~~ cease to be ~~bound by this Section 12.06(c~~a party hereto), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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. (dc) The ~~Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower,~~ Program Agent shall maintain at its address ~~specified~~ referred to in Section ~~12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders,~~ 11.02 of this Agreement a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register for the recordation of the names and addresses of the Committed Purchasers and the Commitment of, and aggregate outstanding Capital of Asset Interests or interests therein owned by, each Committed Purchaser from time to time (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrower~~Seller, the ~~Collateral Manager~~Servicer, the Originator, the Program Agent, the Group Agents, the ~~Collateral Administrator, the Custodian, the Securities Intermediary~~ Conduit Purchasers and the ~~Lenders shall~~ Committed Purchasers may treat each ~~Person~~ person whose name is recorded in the Register as a ~~Lender and the owner of the amounts owing to it~~ Committed Purchaser under ~~the Facility Documents as reflected in the Register~~ this Agreement for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ Seller or any ~~Lender~~ Committed Purchaser at any reasonable time and from time to time upon reasonable prior notice. ~~An Advance (~~Upon its receipt of an Assignment and ~~a Note~~Acceptance executed by an assigning Committed Purchaser and an Eligible Assignee, the Program Agent shall, if ~~any, evidencing the same) may be assigned or sold in whole or in part only by registration of~~ such ~~assignment or sale on the Register (~~Assignment and each Note with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). Each Lender severally 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 an Accredited Investor~~ record the information contained therein in the Register and ~~a Qualified Purchaser~~(iii) give prompt notice thereof to the Seller. (fd) Notwithstanding any other provision of this Section ~~12.06~~11.03, any ~~Lender~~ Committed Purchaser may at any time pledge or grant a security interest in all or any portion of its rights (~~including~~ including, without limitation, rights to payment of ~~principal~~ Capital and ~~interest~~Yield) under this Agreement or under the Asset Purchase Agreement to secure obligations of such ~~Lender, including any pledge or security interest granted~~ Committed Purchaser to a Federal Reserve Bank, without notice to or consent of the ~~Borrower~~ Seller, the Servicer or the ~~Administrative~~ Program Agent; provided that no such pledge or grant of a security interest shall release ~~such Lender~~ a Committed Purchaser from any of its obligations hereunder or under the Asset Purchase Agreement, as the case may be, or substitute any such pledgee or grantee for such ~~Lender~~ Committed Purchaser as a party ~~hereto~~hereto or to the Asset Purchase Agreement, as the case may be. (e) Each Committed Purchaser may sell participations, to one or more banks or other entities which are Eligible Assignees, in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Asset Interests owned by it); provided, however, that: (i) such Committed Purchaser’s obligations under this Agreement (including, without limitation, its Commitment to the Seller hereunder) shall remain unchanged, (ii) such Committed Purchaser shall remain solely responsible to the other parties to this Agreement for the performance of such obligations, and (iii) concurrently with such participation, the selling Committed Purchaser shall sell to such bank or other entity a participation in an equal percentage of its rights and obligations under its Asset Purchase Agreement. The Agents, the other Committed Purchasers and the Seller shall have the right to continue to deal solely and directly with such Committed Purchaser in connection with such Committed Purchaser’s rights and obligations under this Agreement. Such Committed Purchaser may, in connection with any such participation, disclose to participants and potential participants any information relating to the Seller, the Servicer, each Custodian, the Parent or the Originator (including the Collateral) furnished to such Committed Purchaser by or on behalf of the Seller, the Parent, the Originator, each Custodian, the Servicer or the Program Agent; provided that, prior to such disclosure, such participant or potential participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT (f) This Agreement and the rights and obligations of the Program Agent herein shall be assignable by the Program Agent and its successors and assigns. (g) None of the Seller, the Originator or the Servicer may assign its rights or obligations hereunder or any other Transaction Document or any interest herein or therein without the prior written consent of the Program Agent and each Group Agent. (h) Each Conduit Purchaser may, without the consent of the Seller, sell participations to one or more banks or other entities (each, a “Participant”) in all or a portion of its rights and obligations hereunder (including the outstanding Asset Interests); provided that following the sale of a participation under this Agreement (i) the obligations of such Conduit Purchaser shall remain unchanged, (ii) such Conduit Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Seller, the Servicer, the Facility Custodian, the Agents, and the Committed Purchasers shall continue to deal solely and directly with such Conduit Purchaser in connection with such Conduit Purchaser’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which such Conduit Purchaser sells such a participation shall provide that the Participant shall not have any right to direct the enforcement of this Agreement or the other Transaction Documents or to approve any amendment, modification or waiver of any provision of this Agreement or the other Transaction Documents; provided that such agreement or instrument may provide that such Conduit Purchaser will not, without the consent of the Participant, agree to any amendment, modification or waiver that (i) reduces the amount of Capital or Yield that is payable on account of any Asset Interest or delays any scheduled date for payment thereof or (ii) reduces any fees payable by the Seller to the Program Agent or such Conduit Purchaser’s Group Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees. The Seller acknowledges and agrees that any Conduit Purchaser’s source of funds may derive in part from its Participants. Accordingly, references in Sections 2.08, 2.09, 2.10, 6.07, 9.01 and 11.04 and the other terms and provisions of this Agreement and the other Transaction Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to any Conduit Purchaser shall be deemed also to include those of its Participants; provided that the Seller shall not be required to pay higher costs, expenses and indemnification amounts pursuant to this sentence than would be required to be paid by the Seller in the absence of the sale of any participation by a Conduit Purchaser to a Participant as contemplated by this Section 11.03(h). Any Conduit Purchaser, such Conduit Purchaser’s Group Agent or the Program Agent may, in connection with any such participation, disclose to Participants and potential Participants any information relating to the Seller, the Servicer, any Custodian, the Parent or the Originator, including the Collateral, furnished to such Conduit Purchaser, such Conduit Purchaser’s Group Agent or the Program Agent by or on behalf of the Seller, the Parent, Servicer, any Custodian, or the Originator; provided that, prior to any such disclosure, such Participant or potential Participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. Any interest sold by a Conduit Purchaser to a Committed Purchaser or other Liquidity Provider, or any designee thereof, under an Asset Purchase Agreement shall not be considered a participation for the purpose of this Section 11.03(h) (and the Committed Purchaser, Liquidity Provider, or such designee, as applicable, shall not be considered a Participant as a result thereof). COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT

Appears in 1 contract

Samples: Warehouse Loan Purchase Agreement (Colonial Bancgroup Inc)

Assignability. (a) ~~Subject to~~ This Agreement and the ~~conditions set forth~~ Issuer's rights and obligations herein (including ownership of the Purchased Interest or an interest therein) shall be assignable, in ~~this Section 12.06~~whole or in part, ~~each Lender may,~~ by the Issuer and its successors and assigns with the prior written consent of the ~~Borrower (such consent not to be unreasonably withheld~~Seller; PROVIDED, ~~conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~HOWEVER, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such consent shall not 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~~ unreasonably withheld; and PROVIDED FURTHER, that no such ~~request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s~~ consent ~~to any such assignment~~ shall be required if the ~~assignee~~ assignment is ~~(A) a Lender~~ made to BNS, any Affiliate of BNS, any Purchaser or other Program Support Provider or any Person that is: (i) in the business of ~~its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor);~~ issuing Notes and (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) associated with or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited administered by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager BNS or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)BNS. (b) The ~~Borrower~~ Issuer may at any time grant to one or more banks or other institutions (each a "Purchaser") party to the Liquidity Agreement, or to any other Program Support Provider, participating interests in the Purchased Interest. In the event of any such grant by the Issuer of a participating interest to a Purchaser or other Program Support Provider, the Issuer shall remain responsible for the performance of its obligations hereunder and except as otherwise provided herein, Seller and Servicer shall continue to deal with Issuer as if Issuer had not granted such participating interest. The Seller agrees that each Purchaser or other Program Support Provider shall be entitled to the benefits of SECTIONS 1.8 and 1.9. (c) This Agreement and the rights and obligations of the Administrator hereunder shall be assignable, in whole or in part, by the Administrator and its successors and assigns; PROVIDED, that unless: (i) such assignment is to an Affiliate of BNS, (ii) it becomes unlawful for BNS to serve as the Administrator or (iii) a Termination Event exists, the Seller has consented to such assignment, which consent shall not be unreasonably withheld. (d) Except as provided in SECTION 4.1(d), none of the Seller, Keebler or the Servicer may assign its rights or delegate its obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) ~~Notwithstanding anything to the contrary set forth herein or in~~ Without limiting any other ~~Facility Document and each Lender hereunder~~rights that may be available under applicable law, ~~and each Participant, must at all times~~ the rights of the Issuer may 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”). Each Lender severally 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 an Accredited Investor and a Qualified Purchaser~~its agents. (f) Notwithstanding any other provision of this Section 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

Samples: Receivables Purchase Agreement (Keebler Foods Co)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the prior written consent of the Administrative Agent and the Borrower (~~such consent~~ in each case not to be unreasonably ~~withheld, conditioned~~ withheld or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable~~delayed)~~) and the Administrative Agent~~, assign to ~~any Person~~ an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its ~~Advances Outstanding~~ outstanding portion of the Aggregate Loan Amount or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) the Borrower shall be deemed to have consented to an assignment if no response is made by the Borrower within ten (10) Business Days after delivery to the Borrower of notice of a proposed assignment; (ii) neither the ~~Borrower~~Administrative Agent’s nor the ~~Administrative Agent~~Borrower’s consent to any such assignment shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (iiiii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~11.06(a) shall not be required if an Event of Default ~~shall have~~ has 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall has not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared been waived by the ~~Collateral Manager or any of its affiliates~~Lenders in accordance with Section 11.01. The parties to each such assignment shall execute and deliver to the Administrative Agent ~~(with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower)~~ an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 11.03(g) and (j). For the avoidance of doubt, the parties hereto acknowledge and agree that any Conduit Lender may assign its rights and obligations hereunder and under its Loans to any Program Support Provider or any other Lender within its Facility Group (and any such Program Support Provider or Lender within its Facility Group may assign its rights and obligations hereunder to any Conduit Lender hereunder), ~~together with administrative details for~~ in each case, without the ~~applicable assignee (if such assignee is not a current Lender or an Affiliate~~ consent of ~~Citibank~~the Borrower, ~~N.A.). Subject to acceptance and recording thereof by~~ the Administrative Agent ~~pursuant~~ or any other Person. Each such intra-Facility Group assignment shall be recorded on the books and records of the relevant Lenders, without the need to ~~Section 12.06(d), from~~ execute and ~~after the effective date specified in each~~ deliver an Assignment and Acceptance, and for all purposes of this Agreement and all related documents, the ~~assignee thereunder~~ relevant Lenders shall be ~~a party~~ deemed to ~~this Agreement, and to the extent of the interest assigned by such assigning Lender,~~ have the ~~rights~~ benefit of an executed, delivered, accepted and ~~obligations of a Lender under this Agreement~~recorded Assignment and Acceptance relating to such assignment. Notwithstanding any other provision of this Section 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 12.0611.06, 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~~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 obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto. Notwithstanding any other provision of this Agreement (including this Section 11.06(a)), and solely for the purpose of such Conduit Lender or Program Support Provider’s compliance with Rule 3a-7 of the Investment Company Act, any Conduit Lender or Program Support Provider may at any time pledge or grant a security interest in all or any portion of its rights under this Agreement (including, without limitation, rights to payment of the aggregate outstanding principal balance of the Loans and Interest) to any collateral agent or trustee under such Conduit Xxxxxx’s commercial paper note program without notice to or consent of the Borrower (and without entering into an assignment and assumption agreement); provided, that no such pledge or grant of security interest shall release such Conduit Lender or Program Support Provider from any of its WEIL:\99621584\14\35899.0654 obligations hereunder or substitute any such collateral agent or trustee for such Conduit Lender under such Conduit Xxxxxx’s commercial paper note program or Program Support Provider 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 Administrative Agent 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) the Borrower, the Administrative Agent, the applicable Funding 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 (D) each Participant shall have agreed to be bound by this Section 11.06(c) and Sections 11.09(b), 11.15 and 11.19. Sections 2.08 and 11.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that no Participant shall be entitled to any amount under Section 2.08 or 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 payment results from a change in law that occurs after the Participant acquired the applicable participation. (i) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Lender, acting solely for this purpose as a non-fiduciary agent for the Borrower, shall maintain a register on which it enters the names and addresses of all participants in the Aggregate Loan Amount held by it and the principal amount (and stated interest thereon) of each portion of the Aggregate Loan Amount which is the subject of such a 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, Aggregate Loan Amount or its other obligations under this Agreement) 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, Aggregate Loan Amount or other obligation is in registered form under Section 5f.103-1(c) of the U. S. Department of the Treasury regulations. The Aggregate Loan Amount may be participated in whole or in part only by registration of such participation on the Participant Register. Any participation of such Aggregate Loan Amount may be effected only by the registration of such participation on the Participant Register. The entries in the Participant Register shall be conclusive absent manifest error. (c) The Administrative Agent, on behalf of and acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 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 Funding Agents, the Lenders and the aggregate outstanding principal amount of the Aggregate Loan Amount maintained by each Lender under this Agreement (and any stated interest WEIL:\99621584\14\35899.0654

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (ACV Auctions Inc.)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor This Agreement shall not be ~~deemed unreasonable)~~assigned by operation of Law or otherwise without the prior written consent of GGP and Spinco, except that each Party may: (i) ~~and the Administrative Agent,~~ assign ~~to any Person~~ all ~~or a portion~~ of its rights and obligations under this Agreement ~~(including all or a portion~~ to any of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consentSubsidiaries; provided, ~~further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any~~ that no such assignment shall ~~be required if~~ release GGP or Spinco, as the ~~assignee is (A) a Lender~~ case may be, from any liability or ~~any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor)~~obligation under this Agreement; (ii) in connection with the ~~Borrower’s consent~~ divestiture of any Subsidiary or business of Spinco to ~~any~~ an acquiror that is not 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 ~~pursuant~~ 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 ~~Section 12.06(a) shall not~~ Agreement, including the Annexes and Schedules to this Agreement, that may be ~~required if an Event of Default shall have occurred and be continuing; provided that~~ necessary or appropriate in ~~no event shall an assignment be made~~ order to ~~a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing~~assign such Services; and (iii) ~~notwithstanding anything herein~~ in connection with the divestiture of any Subsidiary or business of Spinco to an acquiror that is a Competitor of GGP, assign 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~~ acquiror of such Subsidiary or ~~the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of~~ business its rights and obligations as a recipient with respect to the Services provided to such divested Subsidiary or ~~obligations hereunder is prohibited~~ 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 ~~Applicable Law; provided that~~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 ~~Administrative Agent~~ Parties shall ~~not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined~~ in good faith ~~to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and~~ negotiate any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party amendments to this Agreement, including the Annexes and Schedules 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 12.06~~, that may be necessary or appropriate in order to ensure that such assignment will not (x) ~~no assignment may be made to~~ materially and adversely affect the ~~Borrower,~~ businesses and operations of each of the ~~Collateral Manager, the Equityholder or any of~~ Parties and their respective ~~Affiliates and~~ Subsidiaries or (y) ~~no assignment~~ create a competitive disadvantage for GGP with respect to an acquiror that is a Competitor of GGP, and (iv) GGP shall not be ~~made~~ obligated to provide any ~~Defaulting Lender,~~ such assigned Services to an acquiror that is a ~~natural person~~ Competitor of GGP if the provision of such assigned Services to such acquiror would disrupt the operation of such GGP’s businesses or ~~any Person that, upon becoming~~ create a ~~Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~competitive disadvantage for such GGP with respect to such acquiror. (b) ~~The Borrower may not assign its rights or obligations hereunder or any interest herein without~~ In the ~~prior written consent~~ event of the ~~Administrative Agent and the Lenders.~~ (i) ~~Any Lender may~~merger, ~~without the consent~~ amalgamation or consolidation of ~~(but with notice to) the Borrower~~Spinco and another Person, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name sale of all ~~participants in~~ or substantially all of the ~~Advances held~~ assets of Spinco to another Person, (iii) the acquisition of a majority of the voting stock of Spinco by ~~it and~~ any Person or “group” (within the ~~principal amount (and stated interest thereon~~meaning of Section 13(d)(3) of the ~~portion~~ Securities Exchange Act of 1934, as amended) or (iv) the election of, or appointment to, the board of directors of Spinco of directors constituting a majority of the ~~Advance which is~~ directors then serving if such elected or appointed directors have not been nominated as directors by the ~~subject~~ Nominating Committee of the ~~participation~~ board of directors prior to their election or appointment, then the requirement of GGP to provide Services hereunder shall automatically terminate without further action by the Parties thirty (30) days after the ~~“Participant Register”). An Advance may be participated in whole or in part only by registration~~ occurrence 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 Registerevent. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Transition Services Agreement (Spinco, Inc.)

Assignability. (a) ~~Subject~~ Borrower shall not have the right to assign this Agreement or any interest therein except with the prior written consent of Agent and all Lenders. (b) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender except to the ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to Borrower. (c) Each Lender may, with the consent of ~~the Borrower (such consent~~ Agent and, so long as no Event of Default is then continuing, Borrower, which consents shall not to be unreasonably withheld, ~~conditioned or delayed (it being understood that~~ but without the ~~Borrower’s failure to~~ consent ~~to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~of any other Lender, assign to ~~any Person~~ 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 Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consentAgreement; provided, ~~further, that:~~ that (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to for each such ~~assignment~~ 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 ($3,500.00) 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). Upon such execution and delivery of the Assignment and Acceptance to Administrative ~~Agent~~ Agent, from and after the date specified as the effective date in the Assignment and Acceptance, (~~with~~ x) the assignee thereunder shall be a ~~copy~~ party hereto, and, to the ~~Collateral Agent~~ 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, to~~ Acceptance covering all or the ~~Borrower)~~ remaining portion of 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, 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 's rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall ~~retain the sole right~~ cease to ~~enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement. The Borrower agrees that 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 Lendera party hereto)) to the same extent as if it were a Lender and had acquired its interest by assignment under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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~~By executing and delivering an Assignment and Acceptance Agreement in the form of Exhibit D hereto (an "Assignment and Acceptance"), ~~on behalf~~ 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 ~~and acting solely for~~ this ~~purpose as the non-fiduciary agent~~ Agreement or any of the ~~Borrower~~Other Agreements, ~~shall maintain at its address specified in Section 12.02~~ (ii) such assigning Lender makes no representation or ~~such other address as the Administrative Agent shall designate in writing~~ warranty and assumes no responsibility with respect to the ~~Lenders~~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, ~~each signature page hereto~~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 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,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of ~~the~~ Lenders and the ~~aggregate outstanding~~ Revolving Loan Commitments and Term Loan Commitments of, and principal amount of the ~~Advances Outstanding 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, ~~the Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agent and ~~the~~ Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by ~~the~~ 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (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, (iii) give notice thereof to 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 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 ~~other provision~~ time make under the terms of this ~~Section 12.06~~Agreement and, ~~any~~ 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 ~~pledge~~ make under the terms of this Agreement. Such new promissory note or ~~grant a security interest~~ notes shall re-evidence the indebtedness outstanding under the old promissory note or notes and shall be in ~~all~~ 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 ~~(including rights to payment of principal~~ and ~~interest)~~ obligations under this Agreement (including, without limitation, all or a portion of its Revolving Loan Commitment, or the Loans owing to ~~secure~~ it); provided, that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) Borrower, Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement, ~~including~~ (iv) such Lender shall not transfer, grant, assign or sell any ~~pledge~~ participation under which the participant shall have rights to approve any amendment or ~~security interest granted~~ waiver of this Agreement and (v) any such participant shall agree to ~~a Federal Reserve Bank~~be bound by the confidentiality provisions set forth in Section 28 hereof.. ---------- (h) Each Lender agrees that, without ~~notice to or~~ the prior written consent of Borrower and Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan 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 information in its possession regarding Borrower so long as such potential assignee or participant agrees to be bound by the confidentiality provisions of ~~its obligations hereunder or substitute~~ Section 28 hereof prior to receiving any such ~~pledgee or grantee for such Lender as a party hereto.~~information. ----------

Appears in 1 contract

Samples: Loan and Security Agreement (Cobra Electronics Corp)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 ~~Commitment~~Individual Lender Maximum Funding Amount); provided that 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) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~13.06(a) shall not be required (other than with respect to an assignment to an Ares Competitor) if (x) a Default or an Event of Default shall have occurred (and ~~be continuing; provided that~~ not been waived by the Lenders 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 (a), clause (b~~accordance with Section 13.01) or ~~clause~~ (hy) ~~of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make an~~ such assignment to is required by any Person (other than a Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Change in Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax USActive 54953942.17 -144- forms required by ~~Sections 12.03(f~~Section 13.03(g), 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 ~~12.06~~13.06, ~~(x)~~ no assignment ~~may be made~~ by any Lender to the ~~Borrower, the Collateral Manager, the Equityholder~~ Borrower or any of ~~their respective~~ its Affiliates ~~and (y) no assignment~~ shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~permitted. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Agents and the Lenders. (i) Any Lender may, without the consent of (other than with respect to a participation to an Ares Competitor), but with notice to) , the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this ~~Agreement to any Person other than a Competitor~~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~~ such Borrower, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section ~~12.06(c~~13.06(c), Section ~~12.06(e~~13.06(d), Section ~~12.09~~ 13.06(e) and Section ~~12.16~~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. ~~The Borrower agrees that~~ 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; provided that such~~ Section 13.06 and (B) no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.10, 2.11, or 13.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive~~under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater ~~payment~~ amount results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant. (iii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ~~Xxxxxx~~ Lender as ~~non-fiduciary~~ 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 (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”)~~. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No~~ ; 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 ~~rights and~~ commitments, loans or its other obligations ~~hereunder~~under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. The entries in ~~the~~ a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~the~~ 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, USActive 54953942.17 -145- loans, letters of credit or other obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code, Section 5f.103-1(c) of the United States Treasury regulations, and any other related regulations or successor provisions or regulations. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section ~~12.02~~ 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances~~Note, if any, shall expressly so provide) and compliance with this Section ~~12.06~~13.06. The Administrative 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 and~~ Document, 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~~ 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 Amounts to any Person unless such Person is a Qualified ~~Purchaser~~Purchaser and a QIB. (f) Notwithstanding any other provision of this Section ~~12.06~~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

Samples: Revolving Credit and Security Agreement (Ares Capital Corp)

Assignability. (a) ~~Subject~~ No Borrower shall have the right to assign this Agreement or any interest therein except with the prior written consent of Agent and all Lenders. (b) Any Lender 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to Borrowers. (c) Each Lender may, with the consent of ~~the Borrower (such~~ Agent which consent shall not to be unreasonably withheld, ~~conditioned or delayed (it being understood that~~ but without the ~~Borrower’s failure to~~ consent ~~to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~of any other Lender, assign to ~~any Person~~ 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 Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consentAgreement; provided, ~~further, that:~~ that (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ thereto shall execute and deliver to Agent, for its acceptance and recording in the ~~Administrative Agent~~ Register (~~with~~ as defined below), an Assignment and Acceptance in the form attached hereto as Exhibit C, and a ~~copy~~ processing and recordation fee of Two Thousand Five Hundred and No/100 Dollars ($2,500) to be paid by the assignee, (ii) no such assignment shall be for less than Five Million and No/100 Dollars ($5,000,000) and (iii) such assignment will not be made without the consent of Borrowers, which consent will not be unreasonably withheld, if, but only if, (x) any Borrower would be required at the time of the assignment to pay additional costs and expenses to such new Lender as a result of additional capital reserve or similar costs of such new Lender which exceed those of the assigning Lender at the time of assignment, or (y) such new Lender is not a financial institution listed on Exhibit E hereto. 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 ~~Collateral Agent~~ 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 paragraph 15 of the Agreement which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance~~Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to ~~the Borrower~~be a party hereto). (d) By executing and delivering 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 12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder ~~shall be a party~~ 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~~Agreement or the execution, ~~and to the extent of the interest assigned by such assigning Lender~~legality, ~~have the rights and obligations of a Lender under this Agreement. Notwithstanding any other provision~~ validity, enforceability, genuineness, sufficiency or value of this ~~Section 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder~~ Agreement or any of ~~their respective Affiliates~~ the Other Agreements, (ii) such assigning Lender makes no representation or warranty and ~~(y)~~ assumes no ~~assignment shall be made~~ responsibility with respect to ~~any Defaulting Lender, a natural person~~ the financial condition of Borrower or any ~~Person that, upon becoming a Lender hereunder, would constitute any of~~ other Obligor or the ~~foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights~~ performance or ~~obligations hereunder~~ observance by Borrowers or any ~~interest herein without the prior written consent~~ other Obligor of the Administrative Agent 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 to any Person other than a Competitor; 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, 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 its obligations under this Agreement, ~~and~~ (Diii) ~~each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. Any agreement pursuant to which a Lender sells~~ such ~~a participation shall provide~~ assignee confirms 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, has received a copy of this Agreement, ~~each signature page hereto~~together with copies of the financial statements referred to in paragraph 12(b) 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 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 paragraph 16 of the Agreement a copy of each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of ~~the~~ Lenders and the ~~aggregate outstanding~~ Maximum Loan Amounts of, and principal amount of the ~~Advances Outstanding 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 Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agent and ~~the~~ Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by ~~the Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (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 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 an amount equal to the maximum amount of Loans such assignee may at any ~~other provision~~ time make under the terms of this ~~Section 12.06~~Agreement and, ~~any~~ 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 ~~pledge~~ make under the terms of this Agreement. Such new promissory note or ~~grant a security interest~~ 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 ~~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 Maximum Loan Amount or the Loans owing to ~~secure~~ it); provided, that (i) such Lender's obligations under this Agreement (including, without limitation, its Maximum Loan Amount hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to 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~~ waiver of this Agreement except to the extent such amendment or waiver would (A) extend the final maturity date or the date for the payment of any installment of fees or principal or interest ~~granted~~ 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) reduce the interest rate applicable to ~~a Federal Reserve Bank~~the Loans in which such participant is participating, or (D) reduce any fees payable hereunder. (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~~ possession regarding Borrowers; provided, that any such ~~pledgee or grantee for such Lender as~~ prospective assignee executes a ~~party~~ confidentiality agreement in the form of Exhibit D hereto.

Appears in 1 contract

Samples: Loan and Security Agreement (Empire of Carolina Inc)

Assignability. (a) ~~Subject to~~ The Lender may at any time assign the ~~conditions set forth~~ Lender’s rights in this ~~Section 12.06~~Agreement, ~~each Lender may~~the other Loan Documents, ~~with~~ the ~~consent~~ Obligations, or any part thereof and transfer the Lender’s rights in any or all of the ~~Borrower (such consent not to be unreasonably withheld~~Collateral, ~~conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable))~~ and the ~~Administrative Agent~~Lender thereafter shall be relieved from all liability with respect to such Collateral. In addition, ~~assign to~~ the Lender may at any ~~Person all~~ time sell one or more participations in the Loan. In the event that a ~~portion~~ transfer by Lender of its rights ~~and~~ and/or obligations under this Agreement (~~including~~ and any relevant Loan Documents) occurred or was deemed to occur by way of novation, the Parties explicitly agree that all ~~or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such consent~~ securities and guarantees created under any Loan Documents shall be ~~deemed to have been granted by~~ preserved for the ~~Borrower if~~ benefit of the ~~Borrower shall not have objected in writing within seven (7) Business Days of receipt of any such request for consent; provided~~new lender, ~~further~~new secured party, ~~that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender~~ participant or ~~any of its Affiliates~~ their successors or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent andassignees, in accordance with the ~~case~~ provisions of an Assignment and Acceptance, to the Borrower) 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 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 Article 1278 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)Luxembourg Civil Code. (b) The Borrower may not sell or assign ~~its rights or obligations hereunder~~ this Agreement, or any ~~interest herein without~~ other agreement with the ~~prior written consent~~ Lender or any portion thereof, either voluntarily or by operation of law, (c) This Agreement shall be binding upon the ~~Administrative Agent~~ Lender and the ~~Lenders. (i) Any Lender may~~Borrower and their respective legal representatives and successors, without the consent of (but with notice to) the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement to any Person other than a Competitor; provided that ~~(A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such~~ a successor to the Lender shall ~~remain solely responsible~~ be entitled to rely upon the ~~other parties hereto for~~ provisions of Section 3.5 only if the ~~performance~~ successor has satisfied requirements imposed by the final sentence of ~~such obligations, (C)~~ Section 3.5. If the ~~Borrower, the 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~~ assigns rights ~~and obligations~~ under this Agreement, ~~and (D) each Participant shall have agreed to be bound by~~ the Lender shall, acting solely for this ~~Section 12.06(c)~~purpose as an agent of the Borrower, Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name and address of ~~all participants~~ each assignee’s interest in the ~~Advances held by it~~ Loan and the principal ~~amount~~ amounts (and stated ~~interest thereon~~interest) of each assignee’s interest in the ~~portion of~~ Loans or other obligations under the ~~Advance which is the subject of the participation~~ Loan Documents (the “~~Participant~~ Register”)~~. An Advance may be participated in whole or in part only by registration of such participation on~~ ; provided that the ~~Participant Register (and each Note, if any, shall expressly so provide). 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 interest in any rights and obligations hereunder)~~ to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ loan or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. Any sale or transfer of an interest in the Loan, however evidenced, shall be effective only upon appropriate entries with respect thereto being made in the Register. The entries in the ~~Participant~~ Register shall be conclusive absent manifest error, and ~~such~~ the Lender shall treat each Person whose name is recorded in the ~~Participant~~ Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. ~~For~~ All references herein to the ~~avoidance~~ Borrower shall be deemed to include any successors, whether immediate or remote. In the case of ~~doubt~~a joint venture or partnership, the ~~Administrative Agent (in its capacity~~ term “Borrower” shall be deemed to include all joint venturers or partners thereof, who shall be jointly and severally liable hereunder. Notwithstanding the above, Lender agrees that, so long as ~~Administrative Agent) shall have~~ no ~~responsibility for maintaining~~ Event of Default has occurred and is continuing, that prior to any assignment of this Agreement or the Note to, or any loan participation with, a ~~Participant Register. (d) The Administrative Agent~~Person other than a financial institution whose deposits are insured by the FDIC, ~~on behalf of and acting solely for this purpose as the non-fiduciary agent~~ Lender agrees to obtain Borrower’s prior written approval of the ~~Borrower~~proposed assignee or participant, which approval shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall not be conclusive and binding for all purposes, absent manifest error, and the Borrower, the 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06unreasonably withheld. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Loan Agreement (Golden Minerals Co)

Assignability. (a) ~~Subject~~ This Agreement and the Investors' rights and obligations herein (including ownership of each Advance made by it) shall be assignable in whole or in part by the Investors and their successors and assigns (including, without limitation, pursuant to ~~the conditions set forth in this Section 12.06, each Lender may~~an Asset Purchase Agreement), with the ~~consent of the Borrower (such consent~~ Borrower's consent, which shall not to be unreasonably ~~withheld~~withheld or delayed, ~~conditioned or delayed (it being understood~~ provided, that the Borrower~~’s failure to~~ 's consent ~~to an assignment to a Competitor~~ shall not be ~~deemed unreasonable)~~required if (i) the assignment shall be to an Eligible Assignee or (ii) an Event of Termination has occurred and is continuing. Each such assignor shall notify the Program Agent, its Investor Agent and the ~~Administrative~~ Borrower of any such assignment and shall be accompanied by an assignment pursuant to clause (b) below by one or more of such Investor's Related Banks to one or more of such assignee Investor's Related Banks. Each such assignor may, in connection with any such assignment, disclose to the assignee or potential assignee any information relating to the Borrower, the Servicer, SPE I, the Parent or any Originator, including the Collateral furnished to such assignor by or on behalf of the Borrower, the Parent, SPE I, Servicer, any Originator or by the Program Agent; provided that, ~~assign~~ prior to any ~~Person~~ such disclosure, the assignee or potential assignee agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. (b) Each Bank may assign pursuant to Section 11.03(a) above to any Eligible Assignee or to any other Bank all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its Bank Commitment and any Advances ~~Outstanding or interests therein owned~~ made by it~~, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, ~~further~~however, that: (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ each such assignment shall be ~~required if the assignee is (A)~~ of a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is~~ constant, and not a ~~Competitor);~~varying, percentage of all rights and obligations under this 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 12.06(a~~such assignment) shall ~~not be required if an Event of Default shall have occurred and be continuing; provided that~~ in no event ~~shall an assignment~~ be ~~made to a Competitor without~~ less than the ~~Borrower’s prior written consent unless an Event~~ lesser of ~~Default arising pursuant to clause~~ (~~a), clause~~ x) $10,000,000 and (by) ~~or clause (h)~~ all of ~~Section 6.01 shall have occurred and be continuing; and~~the assigning Bank's Bank Commitment, (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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the ~~Administrative~~ Program Agent (with a copy to the ~~Collateral Agent~~ assignor's Investor Agent), for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, and (iv) concurrently with such assignment, such assignor Bank shall assign to such assignee Bank or other Eligible Assignee an equal percentage of its rights and obligations under its Asset Purchase Agreement (or, if such assignor Bank is Citibank, it shall arrange for such assignee Bank or other Eligible Assignee to become a party to its Asset Purchase Agreement for a maximum Principal amount equal to the assignee's Bank Commitment). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. (i) Any Lender may, without the consent of (but with notice to) the Borrower, sell participations to Participants in covering all or a the remaining portion of such Lender’s rights and obligations under this Agreement to any Person other than a Competitor; 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, 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 an assigning Bank's rights and obligations under this Agreement, ~~and (D) each Participant~~ such Bank shall ~~have agreed~~ cease to be ~~bound by this Section 12.06(c~~a party hereto), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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. (dc) The ~~Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower,~~ Program Agent shall maintain at its address ~~specified~~ referred to in Section ~~12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders,~~ 11.02 of this Agreement a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the ~~Lenders~~ Banks and the Bank Commitment of, and aggregate outstanding ~~principal amount~~ Principal of Advances or interests therein owned by, each Bank from time to time (the ~~Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon~~"Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the ~~Collateral Manager~~Originators, the Program Agent, the Investor Agents, the ~~Collateral Administrator, the Custodian, the Securities Intermediary~~ Investors and the ~~Lenders shall~~ Banks may treat each ~~Person~~ person whose name is recorded in the Register as a ~~Lender and the owner of the amounts owing to it~~ Bank under ~~the Facility Documents as reflected in the Register~~ this Agreement for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ Borrower or any ~~Lender~~ Bank at any reasonable time and from time to time upon reasonable prior notice. ~~An Advance (~~Upon its receipt of an Assignment and ~~a Note~~Acceptance executed by an assigning Bank and an Eligible Assignee, the Program Agent shall, if ~~any, evidencing the same) may be assigned or sold in whole or in part only by registration of~~ such ~~assignment or sale on the Register (~~Assignment and each Note with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). Each Lender severally 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 an Accredited Investor~~ record the information contained therein in the Register and ~~a Qualified Purchaser~~(iii) give prompt notice thereof to the Borrower. (fd) Notwithstanding any other provision of this Section ~~12.06~~10.03, any ~~Lender~~ Bank may at any time pledge or grant a security interest in all or any portion of its rights (~~including~~ including, without limitation, rights to payment of ~~principal~~ Principal and ~~interest~~Yield) under this Agreement or under the Asset Purchase Agreement to secure obligations of such ~~Lender, including any pledge or security interest granted~~ Bank to a Federal Reserve Bank, without notice to or consent of the Borrower or the ~~Administrative~~ Program Agent; provided that no such pledge or grant of a security interest shall release ~~such Lender~~ a Bank from any of its obligations hereunder or under the Asset Purchase Agreement, as the case may be, or substitute any such pledgee or grantee for such ~~Lender~~ Bank as a party ~~hereto~~hereto or to the Asset Purchase Agreement, as the case may be. (e) Each Bank may sell participations, to one or more banks or other entities which are Eligible Assignees, in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Bank Commitment and the Advances owned by it); provided, however, that: (i) such Bank's obligations under this Agreement (including, without limitation, its Bank Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties to this Agreement for the performance of such obligations, and (iii) concurrently with such participation, the selling Bank shall sell to such bank or other entity a participation in an equal percentage of its rights and obligations under its Asset Purchase Agreement. The Agents, the other Banks and the Borrower shall retain the right to continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement. Such Bank may, in connection with any such participation, disclose to participants and potential participants any information relating to the Borrower, the Servicer, SPE I, the Parent or any Originator, including the Collateral furnished to such Bank by or on behalf of the Borrower, the Parent, any Originator or the Servicer; provided that, prior to such disclosure, such participant or potential participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. (f) This Agreement and the rights and obligations of the Program Agent herein shall be assignable by the Program Agent and its successors and assigns. (g) Neither the Borrower, the Parent, any Originator or the Servicer may assign its rights or obligations hereunder or any other Transaction Document or any interest herein or therein without the prior written consent of the Program Agent and each Investor Agent. (h) CAFCO may, without the consent of the Borrower, sell participations to one or more banks or other entities (each, a "Participant") in all or a portion of its rights and obligations hereunder (including the outstanding Advances); provided that following the sale of a participation under this Agreement (i) the obligations of CAFCO shall remain unchanged, (ii) CAFCO shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Servicer, the Agents, and the Banks shall continue to deal solely and directly with CAFCO in connection with CAFCO's rights and obligations under this Agreement. Any agreement or instrument pursuant to which CAFCO sells such a participation shall provide that the Participant shall not have any right to direct the enforcement of this Agreement or the other Transaction Documents or to approve any amendment, modification or waiver of any provision of this Agreement or the other Transaction Documents; provided that such agreement or instrument may provide that CAFCO will not, without the consent of the Participant, agree to any amendment, modification or waiver that (i) reduces the amount of Principal or Yield that is payable on account of any Advance or delays any scheduled date for payment thereof or (ii) reduces any fees payable by the Borrower to the Program Agent or CAFCO's Investor Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees. The Borrower acknowledges and agrees that CAFCO's source of funds may derive in part from its Participants. Accordingly, references in Sections 2.08, 2.09, 2.10, 6.07, 9.01 and 11.04 and the other terms and provisions of this Agreement and the other Transaction Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to CAFCO shall be deemed also to include those of its Participants; provided that the Borrower shall not be required to pay higher costs, expenses and indemnification amounts pursuant to this sentence than would be required to be paid by the Borrower in the absence of the sale of any participation by CAFCO to a Participant as contemplated by this Section 11.03(h). CAFCO, CAFCO's Investor Agent or the Program Agent may, in connection with any such participation, disclose to Participants and potential Participants any information relating to the Borrower, the Servicer, SPE I, the Parent or the Originators, including the Collateral, furnished to CAFCO, CAFCO's Investor Agent or the Program Agent by or on behalf of the Borrower, Parent, Servicer or any Originator; provided that, prior to any such disclosure, such Participant or potential Participant agrees to preserve the confidentiality of any such information which is confidential in accordance with the provisions of Section 11.06 hereof. Any interest sold by CAFCO to a Bank or its designee under its Asset Purchase Agreement shall not be considered a participation for the purpose of this Section 11.03(h) (and the Bank or its designee shall not be considered a Participant as a result thereof).

Appears in 1 contract

Samples: Receivables Financing Agreement (Hayes Lemmerz International Inc)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent (other than with respect to a Competitor) not to be unreasonably withheld, conditioned or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)~~delayed) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided ~~that~~ 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) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its ~~Affiliates (so long as such assignee is not a Competitor)~~Affiliates; (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if an Event of Default shall have occurred and be continuing; provided ~~that~~ 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 (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing; ~~and~~and USActive 59109857.10 (iii) notwithstanding anything herein to the contrary, each Lender may make an assignment to any Person (other than a Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor~~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, 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, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 ~~Borrowers’~~ Borrower’s request USActive 59109857.10 and expense, to use reasonable efforts to cooperate with the ~~Borrowers~~ 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 Collateral Manager, the Agents, the Collateral Administrator, the Document Custodian, the Securities Intermediary and the Lenders shall treat each Person whose name is recorded in the Register as a Lender and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). Each Lender severally represents to the USActive 59109857.10 Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is an Accredited Investor and a Qualified Purchaser. (f) Notwithstanding any other provision of this Section 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

Samples: Credit and Security Agreement (LGAM Private Credit LLC)

Assignability. (a) ~~Subject~~ Any Lender may assign to ~~the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower~~ one or more assignees (~~such consent not~~ provided that no assignments shall be made to ~~be unreasonably withheld, conditioned~~ any Loan Party or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment~~ its Affiliates or to a ~~Competitor shall not be deemed unreasonable)~~natural Person) ~~and the Administrative Agent, assign to any Person~~ all or a portion of its rights and obligations under this Agreement (including all or a portion of its ~~Advances Outstanding~~ 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 Commitment)~~the Borrower Representative and the Administrative Agent; provided that ~~such~~ (x) no consent ~~shall be deemed to have been granted by~~ of 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) neither the Borrower’s nor~~ Representative or the Administrative ~~Agent’s consent to any such assignment~~ Agent shall be required ~~if the assignee is (A)~~ for an assignment to a Lender, an Affiliate of a Lender or ~~any~~ an Approved Fund and (y) no consent of ~~its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii)~~ the ~~Borrower’s consent to any such assignment pursuant to this Section 12.06(a)~~ Borrower Representative shall ~~not~~ be required if an Event of Default ~~shall have~~ has occurred and be is 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 (a)~~, ~~clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make~~ for an assignment to any ~~Person (~~other ~~than a Competitor) with notice to~~assignee; provided, ~~but without the consent of~~further, that the Borrower or Representative shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent if within five (5) Business Days after having received notice thereof. (b) With respect to any assignment hereunder (i) each such ~~Xxxxxx makes~~ assignment shall be of a ~~reasonable determination that its ownership~~ constant, and not a varying, percentage of ~~any of its~~ all rights or and obligations ~~hereunder is prohibited by Applicable Law; provided that~~under this Agreement, and (ii) the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. 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~~Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to ~~the Borrower) 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~~ be a ~~current Lender or an Affiliate of Citibank, N.A.~~party hereto). ~~Subject~~ At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to ~~acceptance and recording thereof~~ in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent ~~pursuant~~ to ~~Section 12.06(d~~the other parties hereto) a register as provided herein (the “Register”)~~, from~~ . The names and ~~after~~ addresses of the ~~effective date specified in each Assignment and Acceptance~~Lenders, the ~~assignee thereunder~~ 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 ~~a party to this Agreement~~registered in the Register, and to the ~~extent~~ Register shall serve as a record of ownership that identifies the owner of the Aggregate Loan Principal Balances and any interest ~~assigned by such assigning Lender, have the rights and obligations of a Lender under this Agreement~~therein. Notwithstanding any other provision of this ~~Section 12.06~~Agreement, ~~(x)~~ no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any transfer of the ~~foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder~~ Aggregate Loan Principal Balances or any interest ~~herein without~~ therein shall be effective unless and until such transfer has been recorded in the ~~prior written consent of~~ 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~~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 this Agreement. This Section 10.03(c) shall be construed so that the Aggregate Loan Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the Code. Solely for the purposes of this Section 10.03(c), the Administrative Agent will act as a non-fiduciary agent of the Borrowers. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. (d) Upon its receipt of an Assignment and Acceptance, the 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 notice thereof to the Borrowers and to the Calculation Agent. (e) Any Lender may, without the consent of any Loan Party (~~but with notice to)~~ 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 hereunder (including the outstanding Loans); provided that following the sale of a participation under this Agreement ~~to any Person other than a Competitor; provided that~~ (Ai) the obligations of such ~~Lender’s obligations under this Agreement~~ Lender shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (Ciii) the ~~Borrower~~Borrowers, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16~~. 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 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 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”, “Thirty-Three Percent Lenders”, “Eighty-Five Percent Lenders”, “Supermajority Lenders” or Section 10.01. The Borrowers acknowledge and agree that any Lender’s source of funds may derive in part from its Participants. Accordingly, references in Section 2.09 or Section 2.10 and the other terms and provisions of this Agreement and the other Loan Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to the Lenders shall be deemed also to include those of its Participants. The Borrower agrees that each Participant shall be entitled to the benefits of Sections ~~2.09~~ 2.09, 2.10, 2.11 and ~~12.03~~ 2.12 (subject to the requirements and limitations therein, including the requirements under Section ~~12.03(f~~2.12(f) (it being understood that the documentation required under Section ~~12.03(f~~2.12(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 ~~under clause~~ pursuant to paragraph (a) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.22 as if it were an assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any greater payment under Sections ~~2.09~~ 2.09, 2.10, 2.11 or ~~12.03~~2.12, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation ~~agrees~~shall, at acting solely for this purpose as an agent of the ~~Borrowers’ request and expense~~Borrower, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as 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~~ each Participant and the principal ~~amount~~ amounts (and stated ~~interest thereon~~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”)~~. 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~~ ; 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 ~~rights and~~ commitments, loans, letters of credit or its other obligations ~~hereunder~~under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary 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 12.02 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,~~ each ~~signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the~~ “~~Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the Advances Outstanding maintained by each Lender~~ Approved Participant” under this Agreement unless the assignment to such Participant has been approved by the Borrower Representative and the Administrative Agent (~~and any stated interest thereon). The entries~~ and, if applicable, the related Assigning Lender has assigned its voting rights to such Participant) as further described in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the 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 and the owner definition of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document and each Lender hereunder, and each “Approved 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”). 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. (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 12.06~~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 1 contract

Samples: Loan Agreement (Invitation Homes Inc.)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the written consent of the Administrative Agent and the Borrower (~~such consent~~ in each case not to be unreasonably ~~withheld, conditioned~~ withheld or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable~~delayed)~~) and the Administrative Agent~~, assign to ~~any Person~~ 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 Commitment); provided that ~~such consent~~ the Borrower shall be deemed to have ~~been granted~~ consented to any such assignment unless it shall object thereto by written notice to the ~~Borrower if the Borrower shall not have objected in writing~~ Administrative Agent within ~~seven~~ five (75) Business Days ~~of receipt of any such request for consent~~after having received notice thereof; ~~provided, further,~~ provided further that: (i) ~~neither~~ the Borrower~~’s nor the Administrative Agent~~’s consent to any such assignment shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor)~~assignor; (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~15.06(a) shall not be required if an Event of Default shall have occurred and ~~be continuing; provided that~~ is continuing (and not been waived by the Lenders 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 (a~~accordance with Section 15.01)~~, clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to a natural person; (iv) no assignment shall be made to (x) a Borrower or any of its Affiliates or Subsidiaries or (y) any Defaulting ~~Lender~~Lender or any of its Subsidiaries, ~~a natural person~~ or any Person ~~that~~who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y).; (bv) ~~The~~ except in the case of an assignment to a Lender or an Affiliate of a Lender or a Permitted Assignee or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Advances of any class, the amount of the Commitment or Advances of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower ~~may not assign its rights or obligations hereunder or any interest herein without~~ and the ~~prior written~~ Administrative Agent otherwise consent, provided that no such consent of the ~~Administrative Agent~~ Borrower shall be required if an Event of Default has occurred and ~~the Lenders.~~is continuing; (ivi) ~~Any Lender may, without~~ each partial assignment shall be made as an assignment of a proportionate part of all 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 to any Person other than a Competitor; 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, 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 assigning Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that ~~such Participant~~ this clause shall not be ~~entitled~~ construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one class of Commitments or Advances; (vii) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its affiliates and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and Applicable Laws, including Federal and state securities laws; and (viii) in connection with any ~~greater payment under Sections 2.09~~ assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or ~~12.03~~subparticipations, or other compensating actions, including funding, with ~~respect~~ the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to ~~any participation~~each of which the applicable assignee and assignor hereby irrevocably consent), ~~than its participating~~ to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender ~~would have been entitled to receive, except~~ to the ~~extent such entitlement to receive a greater payment results from a Change~~ Administrative Agent and each Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Advances in ~~Law that occurs after~~ accordance with its Percentage. Notwithstanding the ~~Participant acquired the applicable participation. Each Lender that sells a participation agrees~~foregoing, ~~at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant. (ii) In~~ in the event that any ~~Lender sells participations in any portion~~ assignment of ~~its~~ rights and obligations ~~hereunder~~of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, ~~such Xxxxxx as non-fiduciary agent for~~ then the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration assignee 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive absent manifest error, and such~~ deemed to be a Defaulting Lender ~~shall treat each Person whose name is recorded in the Participant Register as the owner of such participation~~ for all purposes of this Agreement ~~notwithstanding any notice~~ until such compliance occurs. The parties to ~~the contrary. For the avoidance of doubt,~~ each such assignment shall execute and deliver to 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each an Assignment and Acceptance ~~delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders~~ and the ~~aggregate outstanding principal amount of the Advances Outstanding maintained~~ applicable tax forms required 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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 Acceptance15.03(g) and (~~ii) on each date on which it makes an Advance hereunder~~j), ~~that it is an Accredited Investor~~ together with a processing and ~~a Qualified Purchaser. (f)~~ recordation fee of $3,500, such fee to be paid by either the assigning Lender or the assignee Lender or shared between such Lenders. Notwithstanding any other provision of this Section ~~12.06~~15.06, 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 Administrative Agent 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 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, (D) each Participant shall have agreed to be bound by this Section 15.06(c) and Sections 14.09(b) and 14.15 and (E) each Participant shall have a short term rating of at least “A-2/P2” by S&P and Mxxxx’x, respectively. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 15.06(f) with respect to any Participant. Sections 2.09, 2.16 and 15.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that no Participant shall be entitled to any amount under Sections 2.09, 2.16 or 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. (d) 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 of all participants in the Advances held by it and the principal amount (and stated interest thereon) 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, Advances or its other obligations under this Agreement) except to the extent that such disclosure is necessary to establish that such Commitment, Advance or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register. Any participation of such Advance may be effected only by the registration of such participation on the Participant Register. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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. (e) 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 15.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, the Administrative Questionnaire and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register 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 may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register and in accordance with this Section 15.06. (f) 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 Commitment to any Person unless such Person is a Qualified Purchaser and a QIB.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Newtek Business Services Corp.)

Assignability. (a) ~~Subject to the conditions set forth~~ This Agreement and any Purchaser’s rights and obligations herein (including ownership of its Participation) shall be assignable, in ~~this Section 12.06~~whole or in part, ~~each Lender may,~~ by such Purchaser and its successors and assigns with the prior written consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) Seller and the ~~Administrative~~ Agent; provided, ~~assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it~~however, ~~together with ratable portions of its Commitment); provided~~ that such consent shall not 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~~unreasonably withheld; and provided, further, ~~that: (i) neither the Borrower’s nor the Administrative Agent’s~~ that no such consent ~~to any such assignment~~ shall be required if the ~~assignee~~ assignment is made to (Ai) ~~a Lender or~~ any Affiliate of ~~its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ such ~~assignee is not a Competitor);~~ Purchaser, (ii) ~~the Borrower’s consent to~~ any Liquidity Bank (or any Person who upon such assignment ~~pursuant to this Section 12.06(a) shall not~~ would be ~~required if 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 (a), clause (b) or clause (h~~Liquidity Bank) of ~~Section 6.01 shall have occurred and be continuing; and~~ such Purchaser or (iii) ~~notwithstanding anything herein~~ 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 ~~contrary, each Lender may make an assignment~~ applicable assignee any information relating to ~~any Person (other than a Competitor) with notice to, but without~~ the ~~consent of~~Seller or the Pool Receivables furnished to such assignor by or on behalf of the Seller, the ~~Borrower~~ Agent, the Purchasers or the ~~Administrative Agent if such Xxxxxx makes~~ Purchaser Agents. Upon the assignment by a ~~reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that~~Purchaser in accordance with this Section 6.3, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each assignee receiving such assignment shall ~~execute and deliver~~ have all of the rights of such Purchaser with respect to the ~~Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) an Assignment and Acceptance~~ Transaction Documents and the ~~applicable tax forms required by Sections 12.03(f), together with administrative details for the applicable assignee~~ Investment (if or such ~~assignee is not a current Lender or an Affiliate of Citibank, N.A.). Subject to acceptance and recording~~ portion 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (yas has been assigned). (b) 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. I\11418185.1 The ~~Borrower~~ 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 ~~not~~ assign its rights or delegate its obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06Majority Purchasers. (e) ~~Notwithstanding anything to the contrary set forth herein or in~~ Without limiting any other ~~Facility Document and each Lender hereunder~~rights that may be available under applicable law, ~~and each Participant, must at all times~~ the rights of any Purchaser may 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”). Each Lender severally 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 an Accredited Investor and a Qualified Purchaser~~its Purchaser Agent or its other agents. (f) [*] (g) Notwithstanding any other provision of this Section ~~12.06~~6.3, (i) any ~~Lender~~ Purchaser may at any time pledge or grant a security interest in all or any portion of its rights (~~including~~ including, without limitation, any interests in its Participation and any rights to payment of ~~principal~~ Investment and ~~interest~~Discount) under this Agreement to secure obligations of such ~~Lender, including any pledge or security interest granted~~ Purchaser to a Federal Reserve ~~Bank~~Bank and (ii) any Note Issuer may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, any Participation and any rights to payment of Investment and Discount) under this Agreement to a collateral trustee in order to comply with Rule 3a-7 under the Investment Company Act of 1940 (as amended), in each case without notice to or consent of any Seller Party, the ~~Borrower~~ Agent, any Purchaser Agent or ~~the Administrative Agent~~any Purchaser; provided that no such pledge or grant of a security interest shall release ~~such Lender~~ a Purchaser from any of its obligations ~~hereunder~~ hereunder, or substitute any such pledgee or grantee for such ~~Lender~~ Purchaser as a party hereto.

Appears in 1 contract

Samples: Receivables Purchase Agreement (KAR Auction Services, Inc.)

Assignability. (a) ~~Subject~~ 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 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ 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 Agent and, so long as no Event of Default is in existence, the Borrower (such consent not to be unreasonably ~~withheld, conditioned~~ withheld or ~~delayed (it being understood that~~ delayed) and concurrent notice to the Borrower~~’s failure to~~ , but without the consent ~~to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~of any other Lender, assign to ~~any Person~~ 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 Advances Outstanding 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 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 seven (7) Business Days of receipt of any such request for consent; providedRevolving Loans and Revolving Credit Commitments, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) ~~the Borrower’s consent to any~~ for each such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ 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 (if any) to make Swing Loans), (iv) the consent of the Issuing Bank (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding), (v) 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 (vi) assignments by or to a Permitted Affiliate Lender shall be subject to Section 14.20; and provided, further, that any assignment to an 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 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~~Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Credit Agreement, such Lender shall cease to ~~the Borrower~~be a party hereto). (d) By executing and delivering 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 12.06(d), from and after the effective date specified in each 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 (i) 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”) and (ii) information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The entries in the Register shall be ~~a party to this Agreement~~conclusive and binding for all purposes, absent manifest error, 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 12.06, (x) no assignment may be made to the Borrower, the ~~Collateral Manager,~~ Agent and the ~~Equityholder~~ 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 ~~of their respective Affiliates~~ Lender at any reasonable time and ~~(y) no assignment shall be made~~ from time to ~~any Defaulting Lender, a natural person or any Person that,~~ time upon ~~becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~reasonable prior notice. (bf) ~~The~~ 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 ~~may not assign its rights~~ shall execute and deliver to the Agent in exchange for any surrendered Note or ~~obligations hereunder~~ Notes (which the assigning Lender agrees to promptly deliver to the Borrower) a new Note or ~~any interest herein without~~ Notes to the ~~prior written consent~~ order of the ~~Administrative Agent~~ assignee in an amount equal to the Revolving Credit Commitment (and commitment to make Swing Loans, if applicable) assumed by it pursuant to such Assignment and Acceptance and, if the ~~Lenders~~assigning Lender has retained a Revolving Credit Commitment 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 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. (ig) ~~Any~~ Each Lender ~~may~~may sell participations, without the consent of the Agent, the Borrower (~~but with notice to~~as to any Person, other than a fund, that would be an Eligible Assignee for an assignment) ~~the Borrower~~any other Lender, ~~sell participations~~ to ~~Participants~~ one or more parties in or to all or a portion of ~~such Lender’s~~ 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 ~~Person other than a Competitor~~Note or Notes held by it); provided that (Ai) such Lender’s obligations under this Credit Agreement (including, without limitation, its Revolving Credit Commitments to the Borrower hereunder) shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Ciii) such Lender shall remain the holder of any such Note for all purposes of this Credit Agreement, (iv) the Borrower, the ~~Agents~~Agent, ~~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,~~ Credit Agreement and (Dv) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, 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 payment results from a Change~~ the Loans or Letter of Credit reimbursement obligations in ~~Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees~~which such participant is participating, ~~at the Borrowers’ request and expense~~or (D) except as otherwise expressly provided in this Credit Agreement, ~~to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to~~ reduce any ~~Participant~~Fees payable hereunder. (iih) Each Lender agrees that, without the prior written consent of the 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. (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 be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its pro rata share. Notwithstanding the foregoing, in the event that any ~~Lender sells participations in any portion~~ assignment of ~~its~~ rights and obligations ~~hereunder~~of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, ~~such Xxxxxx as non-fiduciary agent for~~ then the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration assignee 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive absent manifest error, and such~~ deemed to be a Defaulting Lender ~~shall treat each Person whose name is recorded in 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 Registeruntil such compliance occurs. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Senior Secured Credit Facility (TransMontaigne Partners L.P.)

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) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign ~~to any Person~~ all ~~or a portion~~ of its rights and obligations under this Agreement ~~(including all or a portion~~ to any of its ~~Advances Outstanding~~ 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 of its 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 seven (7) Business Days of receipt~~ divestiture of any Subsidiary or business of such ~~request for consent;~~ 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 rights and obligations as a Recipient with respect to the Services provided to such divested Subsidiary or business under this Agreement, provided, ~~further, that:~~ that (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ no such assignment shall ~~be required if~~ release Cardinal Health or CareFusion, as the ~~assignee is (A) a Lender~~ case may be, from any liability or ~~any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor);~~ obligation under this Agreement, (ii) ~~the Borrower’s consent to~~ any and all costs and expenses incurred by either Party in connection with such assignment ~~pursuant~~ (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 ~~Section 12.06(a) shall not~~ Agreement, including the Annexes and Schedules to this Agreement, that may be ~~required if an Event of Default shall have occurred and be continuing; provided that~~ necessary or appropriate in ~~no event shall an assignment be made~~ order to ~~a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing~~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) ~~notwithstanding anything herein to~~ of this proviso) shall be borne solely by the ~~contrary~~assigning Party, ~~each Lender may make an assignment to any Person~~ (~~other than a Competitor~~iii) ~~with notice to, but without~~ the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent Parties shall ~~not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined~~ in good faith ~~to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and~~ negotiate any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party amendments to this Agreement, including the Annexes and Schedules 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 12.06~~, that may be necessary or appropriate in order to ensure that such assignment will not (x) ~~no assignment may be made to~~ materially and adversely affect the ~~Borrower,~~ businesses and operations of each of the ~~Collateral Manager, the Equityholder or any of~~ Parties and their respective Affiliates ~~and~~ or (y) create a competitive disadvantage for the Provider with respect to an acquiror that is a Competitor, and (iv) no ~~assignment~~ Party shall be ~~made~~ obligated to provide any ~~Defaulting Lender~~such assigned Services to an acquiror that is a Competitor if the provision of such assigned Services to such acquiror would disrupt the operation of such Party’s businesses or create a competitive disadvantage for such Party with respect to such acquiror; provided, ~~a natural person or any Person~~ that, ~~upon becoming a Lender hereunder, would constitute any of~~ notwithstanding anything to the ~~foregoing Persons described~~ contrary in this ~~clause (y). (b) The Borrower may not~~ Section 11.13, no Party shall be entitled to assign ~~its~~ any rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 that relate to ~~any Person other than a Competitor;~~ Services 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~~ former Medical Products Technologies business of such obligations, (C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No Lender shall have any obligation to disclose all or any portion of the Participant Register Cardinal Health (including ~~the identity of any Participant or any information relating to a Participant’s interest in any rights~~ respiratory, infection prevention, X. Xxxxxxx and ~~obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103~~On-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 RegisterSite businesses). (d) The Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Transition Services Agreement (CareFusion Corp)

Assignability. (a) ~~Subject~~ 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to any Borrower. (c) Each Lender may, with the consent of the ~~Borrower~~ Agent (such consent not to be unreasonably withheld, conditioned or delayed ~~(it being understood that the Borrower’s failure to~~ and such consent ~~to an assignment to a Competitor~~ shall not be ~~deemed unreasonable~~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 loan portfolio of such Lender (a "Portfolio Sale")~~) and~~ ), but without the ~~Administrative Agent~~consent of any other Lender or other Person, assign to ~~any Person~~ one or more Persons all or a portion of its rights and obligations under this Credit Agreement ~~(including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment)~~and the Notes; provided that 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) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ 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 (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 Existing Loans; provided, additionally, that, as long as no Default or 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 ~~Collateral Agent~~ 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 14.8 which will survive) and be released from its obligations under this Credit Agreement (and, in the case of an Assignment and ~~Acceptance~~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). (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 ~~Borrower)~~ Term B Lenders so long as the parties provide for the termination of the Existing Commitment of each of the assigning Lenders and an ~~Assignment and Acceptance~~ 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 ~~applicable tax forms required~~ 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 ~~Sections 12.03(f), together with administrative details for the applicable assignee~~ Section 14.6(c) above. (~~if such assignee is not a current Lender or~~ e) By executing and delivering 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,~~ confirms 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. agrees as follows: (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 to any Person other than ~~a Competitor;~~ as provided ~~that (A)~~ in 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 BorrowerAssignment and Acceptance, the ~~Agents, the Collateral Administrator, the Custodian~~ assigning Lender makes no representation or warranty and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, assumes no responsibility with respect to any ~~participation~~statements, ~~than its participating~~ 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 would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request makes no representation or warranty and ~~expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20~~ assumes no responsibility with respect to the financial condition of any ~~Participant~~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. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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. (df) The ~~Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower,~~ Agent shall maintain at its address ~~specified~~ referred to in Section ~~12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders,~~ 14.5 a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the Lenders and the aggregate ~~outstanding~~ commitments of, and principal amount of the ~~Advances Outstanding 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agent and the Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Credit Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by ~~the Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (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 and each Lender hereunder, and each Participant, must at all times be an “accredited investor” as defined in paragraphs (1), (2), (3), and (7)~~ substantially the form 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”). Each Lender severally represents to the BorrowerExhibit 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 record the information contained therein in the Register and (iii) give prompt notice thereof to each date on which it makes an Advance hereunder, that it is an Accredited Investor and a Qualified Purchaser. (f) Notwithstanding any other provision of this Section 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.Borrower. Within five

Appears in 1 contract

Samples: Credit Agreement (Chiquita Brands International Inc)

Assignability. (a) ~~Subject~~ 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to Borrowers. (c) Each Lender may, with the consent of ~~the Borrower (such~~ Agent which consent shall not to be unreasonably withheld, ~~conditioned or delayed (it being understood that~~ but without the ~~Borrower’s failure to~~ consent ~~to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~of any other Lender nor Borrower Representative, assign to ~~any Person~~ 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 Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such consent shall be deemed to have been granted by and the ~~Borrower if the Borrower shall not have objected in writing within seven (7) Business Days of receipt of any such request for consent~~Other Agreements; provided, ~~further, that:~~ that (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ thereto shall execute and deliver to Agent, for its acceptance and recording in the ~~Administrative Agent~~ Register (~~with~~ as defined below), an Assignment and Acceptance Agreement in the form attached hereto as Exhibit D (the "Assignment and Acceptance"), and a ~~copy~~ 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). 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 ~~Collateral Agent~~ 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 this Agreement which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance~~Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to ~~the Borrower~~be a party hereto). (d) By executing and delivering 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 12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder ~~shall be a party~~ 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~~Agreement and the Other Agreements or the execution, ~~and to the extent of the interest assigned by such assigning Lender~~legality, ~~have the rights and obligations of a Lender under this Agreement. Notwithstanding any other provision~~ validity, enforceability, genuineness, sufficiency or value of this ~~Section 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder~~ Agreement or any of ~~their respective Affiliates~~ the Other Agreements, (ii) such assigning Lender makes no representation or warranty and ~~(y)~~ assumes no ~~assignment shall be made~~ responsibility with respect to ~~any Defaulting Lender, a natural person~~ the financial condition of Borrowers or any ~~Person that, upon becoming a Lender hereunder, would constitute any of~~ other Obligor or the ~~foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights~~ performance or ~~obligations hereunder~~ observance by Borrowers or any ~~interest herein without the prior written consent~~ other Obligor of the Administrative Agent 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 its obligations under this Agreement ~~to any Person other than a Competitor; provided that~~ and the Other Agreement, (Aiii) such ~~Lender’s obligations under~~ assignee confirms that it has received a copy of this Agreement ~~shall remain unchanged~~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, (Biv) 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 ~~remain solely responsible to~~ deem appropriate at the ~~other parties hereto for the performance of such obligations~~time, ~~(C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall~~ continue to ~~deal solely and directly with such Lender~~ make its own credit decisions in ~~connection with such Lender’s rights and obligations~~ 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 (Dvi) ~~each Participant shall have agreed~~ such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be ~~bound~~ performed by ~~this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. Any agreement pursuant to which~~ it as a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant. (iie) ~~In the event that any Lender sells participations in any portion of its rights and obligations hereunder~~Agent shall, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address ~~specified~~ referred to in Section ~~12.02 or such other address as~~ 24 of the ~~Administrative Agent shall designate in writing to the Lenders,~~ Agreement a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of ~~the~~ Lenders and the ~~aggregate outstanding~~ Revolving Loan Commitments and Term Loan Commitments of, and principal amount of the ~~Advances Outstanding 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 Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agent and ~~the~~ Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by ~~the Borrower~~Borrowers, ~~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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (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 12.06~~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

Samples: Loan and Security Agreement (Amcon Distributing Co)

Assignability. (a) ~~Subject~~ Any Lender may assign to ~~the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower~~ one or more assignees (~~such consent not~~ provided that no assignments shall be made to ~~be unreasonably withheld, conditioned~~ any Loan Party or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment~~ its Affiliates or to a ~~Competitor shall not be deemed unreasonable)~~natural Person) ~~and the Administrative Agent, assign to any Person~~ all or a portion of its rights and obligations under this Agreement (including all or a portion of its ~~Advances Outstanding~~ 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 Commitment)~~the Borrower Representative and the Administrative Agent; provided that ~~such~~ (x) no consent ~~shall be deemed to have been granted by~~ of 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) neither the Borrower’s nor~~ Representative or the Administrative ~~Agent’s consent to any such assignment~~ Agent shall be required ~~if the assignee is (A)~~ for an assignment to a Lender, an Affiliate of a Lender or ~~any~~ an Approved Fund and (y) no consent of ~~its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii)~~ the ~~Borrower’s consent to any such assignment pursuant to this Section 12.06(a)~~ Borrower Representative shall ~~not~~ be required if an Event of Default ~~shall have~~ has occurred and be is 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 (a)~~, ~~clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make~~ for an assignment to any ~~Person (~~other ~~than a Competitor) with notice to~~assignee; provided, ~~but without the consent of~~further, that the Borrower or Representative shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent if within five (5) Business Days after having received notice thereof. (b) With respect to any assignment hereunder (i) each such ~~Xxxxxx makes~~ assignment shall be of a ~~reasonable determination that its ownership~~ constant, and not a varying, percentage of ~~any of its~~ all rights or and obligations ~~hereunder is prohibited by Applicable Law; provided that~~under this Agreement, and (ii) the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. 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~~Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to ~~the Borrower) 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~~ be a ~~current Lender or an Affiliate of Citibank, N.A.~~party hereto). ~~Subject~~ At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to ~~acceptance and recording thereof~~ in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent ~~pursuant~~ to ~~Section 12.06(d~~the other parties hereto) a register as provided herein (the “Register”)~~, from~~ . The names and ~~after~~ addresses of the ~~effective date specified in each Assignment and Acceptance~~Lenders, the ~~assignee thereunder~~ 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 ~~a party to this Agreement~~registered in the Register, and to the ~~extent~~ Register shall serve as a record of ownership that identifies the owner of the Aggregate Loan Principal Balances and any interest ~~assigned by such assigning Lender, have the rights and obligations of a Lender under this Agreement~~therein. Notwithstanding any other provision of this ~~Section 12.06~~Agreement, ~~(x)~~ no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any transfer of the ~~foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder~~ Aggregate Loan Principal Balances or any interest ~~herein without~~ therein shall be effective unless and until such transfer has been recorded in the ~~prior written consent of~~ 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~~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 this Agreement. This Section 10.03(c) shall be construed so that the Aggregate Loan Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the Code. Solely for the purposes of this Section 10.03(c), the Administrative Agent will act as a non-fiduciary agent of the Borrowers. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. (d) Upon its receipt of an Assignment and Acceptance, the 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 notice thereof to the Borrowers and to the Calculation Agent. (e) Any Lender may, without the consent of any Loan Party (~~but with notice to)~~ 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 hereunder (including the outstanding Loans); provided that following the sale of a participation under this Agreement ~~to any Person other than a Competitor; provided that~~ (Ai) the obligations of such ~~Lender’s obligations under this Agreement~~ Lender shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (Ciii) the ~~Borrower~~Borrowers, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16~~. 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 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 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 Section 2.10 and the other terms and provisions of this Agreement and the other Loan Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to the Lenders shall be deemed also to include those of its Participants. The Borrower agrees that each Participant shall be entitled to the benefits of Sections ~~2.09~~ 2.09, 2.10, 2.11 and ~~12.03~~ 2.12 (subject to the requirements and limitations therein, including the requirements under Section ~~12.03(f~~2.12(f) (it being understood that the documentation required under Section ~~12.03(f~~2.12(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 ~~under clause~~ pursuant to paragraph (a) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.21 as if it were an assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any greater payment under Sections ~~2.09~~ 2.09, 2.10, 2.11 or ~~12.03~~2.12, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation ~~agrees~~shall, at acting solely for this purpose as an agent of the ~~Borrowers’ request and expense~~Borrower, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as 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~~ each Participant and the principal ~~amount~~ amounts (and stated ~~interest thereon~~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”)~~. 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~~ ; 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 ~~rights and~~ commitments, loans, letters of credit or its other obligations ~~hereunder~~under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary 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 12.02 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,~~ each ~~signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the~~ “~~Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the Advances Outstanding maintained by each Lender~~ Approved Participant” under this Agreement unless the assignment to such Participant has been approved by the Borrower Representative and the Administrative Agent (~~and any stated interest thereon). The entries~~ and, if applicable, the related Assigning Lender has assigned its voting rights to such Participant) as further described in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the 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 and the owner definition of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document and each Lender hereunder, and each “Approved 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”). 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. (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 12.06~~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 1 contract

Samples: Loan Agreement (Invitation Homes Inc.)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it~~, together with ratable portions of its 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 ~~seven~~ five (75) Business Days of receipt of any such request for consent; and provided, further, that: (i) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor)~~assignor; (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if an Event of Default shall have occurred (and ~~be continuing; provided that~~ not been waived by the Lenders 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 (a~~accordance with Section 12.01)~~, clause (b) or clause (h) 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,~~ of the Borrower or the Administrative Agent if such ~~Xxxxxx~~ Lender makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable ~~Law;~~ Law (including, without limitation, the Vxxxxxx Rule), provided ~~that,~~ that each Lender agrees to use commercially reasonable efforts to make any such assignment to a Person that is not a business development company or any other Person that is identified by the Borrower in writing to the Administrative Agent ~~shall not disclose any information to~~ and the Lenders on or before the Closing Date as a ~~Competitor after~~ direct competitor of the ~~Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive~~Borrower, ~~including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by~~ the Collateral Manager or any of ~~its affiliates~~their Affiliates; provided, however, that no bank or insurance company shall constitute a competitor for purposes of this Section 12.06(a)(iii). The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by Sections ~~12.03(f~~12.03(g) and 12.03(i), together with administrative details for the applicable assignee (if such assignee is not a current ~~Lender or an Affiliate of Citibank, N.A.~~Lender). 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 12.06, (x) no assignment ~~may~~ shall be made to ~~the Borrower, the Collateral Manager, the Equityholder or~~ any ~~of their respective Affiliates~~ natural person and (y) no assignment by any Lender to the Borrower or any of its Affiliates shall be ~~made~~ permitted unless each Lender has been offered the opportunity to participate in any ~~Defaulting Lender,~~ such assignment on a ~~natural person or any Person that, upon becoming a Lender hereunder, would constitute any of~~ pro rata basis on the ~~foregoing Persons described in this clause (y)~~same terms. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor~~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~~ such Borrower, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. ~~The Borrower agrees that~~ Sections 2.09, 2.10, and 12.03 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 ~~under~~ pursuant to clause (a) of this Section; provided that (x) such Participant agrees to be subject to the provisions of Sections 2.16 and 12.03(g) as if it were an assignee under clause (a) of this Section and (y) no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.09, 2.10, or 12.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive, except to the extent~~ under any such ~~entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired~~ Sections or provisions if the applicable ~~participation. Each Lender that sells a~~ participation ~~agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant~~had not occurred. (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such ~~Xxxxxx~~ Lender as ~~non-fiduciary~~ nonfiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). ~~No Lender shall have any obligation to disclose all or any portion of the~~ 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 rights and obligations hereunder) to any Person except~~ Borrower to the extent necessary for the Borrower to establish that such ~~rights and obligations are~~ commitment, loan or other obligation is in registered form under Section 5f.103-1 of the United States Treasury ~~Regulations~~Regulations or for the Borrower or any Agent to satisfy any information reporting requirement with respect to payments made to such Participant. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the Lenders and the aggregate outstanding principal amount of the 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 ~~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 and the owner of the amounts owing to it under the Facility ~~Documents~~ Documents, as reflected in the ~~Register~~ Register, for all purposes of the Facility Documents. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances~~Note, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility ~~Document and~~ Document, 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~~ a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances to any Person unless such Person is a Qualified ~~Purchaser~~Purchaser and a QIB. (f) Notwithstanding any other provision of this Section 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

Samples: Credit and Security Agreement (Oxford Square Capital Corp.)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)~~delayed) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 ~~seven~~ five (75) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its ~~Affiliates (so long as such assignee is not a Competitor)~~Affiliates; (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ~~Xxxxxx~~ 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 ~~Administrative Agent~~ extent not prohibited by applicable law, obligation of privilege or a binding confidentiality agreement (not entered into in contemplation of such assignment), such notice shall ~~not disclose~~ identify the material regulatory reasons necessitating such assignment or participation; provided, further that, prior to approaching any ~~information~~ such prospective assignee or making any such assignment under this clause (iii), such Lender will use reasonable efforts to ~~a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined~~ consult in good faith with the Borrower to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliatesdesignate an assignee that is not a Disqualified Institution. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections~~ Section 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 12.06, (x) no assignment may be made to the Borrower, the ~~Collateral Manager~~Servicer, the Equityholder or any of their respective ~~Affiliates and~~ Affiliates, (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)) and (z) unless an Event of Default has occurred and is continuing, no assignment may be 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 Administrative Agent and the Lenders. (i) Any Lender may, without the consent 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 to any Person other than a Competitor~~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, 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, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.20 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 and proposed Section 1.163-5(b) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 ~~Collateral Manager~~Servicer, the Agents, the Collateral Administrator, the Document Custodian, the Securities Intermediary and the Lenders shall treat each Person whose name is recorded in the Register as a Lender and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the Borrower, the ~~Collateral Manager~~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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Credit and Security Agreement (SLR Private Credit BDC II LLC)

Assignability. (a) ~~Subject~~ Any Lender may assign to ~~the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower~~ one or more assignees (~~such consent not~~ provided that no assignments shall be made to ~~be unreasonably withheld, conditioned~~ any Loan Party or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment~~ its Affiliates or to a ~~Competitor shall not be deemed unreasonable)~~natural Person or, so long as no Event of Default has occurred and is continuing, to a competitor) ~~and the Administrative Agent, assign to any Person~~ all or a portion of its rights and obligations under this Agreement (including all or a portion of its ~~Advances Outstanding 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 ~~Commitment)~~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 ~~such~~ 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 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, further, that the Borrower Representative shall be deemed to have ~~been granted~~ consented to any such assignment unless it shall object thereto by written notice to the ~~Borrower if the Borrower shall not have objected in writing~~ Administrative Agent within ~~seven~~ five (75) Business Days after having received notice thereof. Notwithstanding anything in the foregoing to the contrary, the consent of ~~receipt~~ 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 ~~request for consent; provided, further, that:~~entity (which consent may be withheld in the sole discretion of the Borrower). (b) With respect to any assignment hereunder (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ each such assignment shall be ~~required if the assignee is (A)~~ of a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is~~ constant, and not a ~~Competitor);~~varying, percentage of all rights and obligations under this Agreement, and (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. 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, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. (i) Any Lender may, without the consent of (but with notice to) the Borrower, sell participations to Participants in covering all or a the remaining portion of such Lender’s rights and obligations under this Agreement to any Person other than a Competitor; 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, 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 an assigning Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall ~~retain the sole right~~ cease to ~~enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”party hereto). ~~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~~ At all times during which 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name Loan is ~~recorded in 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~~outstanding, 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 non-fiduciary agent of the Borrower, shall maintain at its address ~~specified~~ referred to in Section ~~12.02~~ 10.02 of this Agreement (or such other address as of the Administrative Agent ~~shall designate in writing~~ notified by the Administrative Agent to the other parties hereto) a register as provided herein (the “Register”). The names and addresses of the Lenders, ~~a copy~~ the Aggregate Loan Principal Balance (and stated interest) and any interests therein, and any Assignments and Acceptances of ~~this Agreement, each signature page hereto, each Assignment and Acceptance~~ the Aggregate Loan Principal Balance or any interest therein delivered to and accepted by itthe Administrative Agent, shall be registered in the Register, and the Register shall serve as a ~~register (~~record of ownership that identifies the ~~“Register”) for the recordation~~ owner of the ~~names~~Aggregate Loan Principal Balances and any interest therein. Notwithstanding any other provision of this Agreement, ~~addresses and wiring instructions~~ no transfer of the ~~Lenders~~ Aggregate Loan Principal Balances or any interest therein shall be effective unless and until such transfer has been recorded in the ~~aggregate outstanding principal amount of the Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon)~~Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrower~~Borrowers, the ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as a ~~Lender and~~ Lender, as the ~~owner of the amounts owing to it~~ case may be, under ~~the Facility Documents as reflected in the Register~~ this Agreement for all purposes of this Agreement. This Section 10.03(c) shall be construed so that the ~~Facility Documents~~Aggregate Loan Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the Code. Solely for the purposes of this Section 10.03(c), the Administrative Agent will act as a non-fiduciary agent of the Borrowers. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. ~~An Advance~~ (d) Upon its receipt of an Assignment and ~~a Note~~Acceptance, the Administrative Agent shall, if ~~any, evidencing the same) may be assigned or sold in whole or in part only by registration of~~ such ~~assignment or sale on the Register (~~Assignment and each Note with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). Each Lender severally 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 an Accredited Investor~~ record the information contained therein in the Register and ~~a Qualified Purchaser.~~ (fiii) ~~Notwithstanding any other provision of this Section 12.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights~~ give prompt written notice thereof to ~~payment of principal~~ the Borrowers and ~~interest) under this Agreement~~ to ~~secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of~~ the ~~Borrower or the Administrative~~ Calculation Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto..

Appears in 1 contract

Samples: Loan Agreement (Bluerock Homes Trust, Inc.)

Assignability. (a) ~~Subject~~ This Agreement and the Investors’ rights and obligations herein (including ownership of each Receivable Interest) shall be assignable by the Investors and their successors and assigns to the ~~conditions set forth~~ Related Banks in ~~this~~ their Group and, unless, immediately after giving effect to such assignment, Seller would become obligated to pay amounts under Section ~~12.06~~2.10(a) as a result of the deduction of taxes (in which case, ~~each Lender may,~~ such assignment shall be permitted only with the prior written consent of the ~~Borrower (such consent not~~ Seller), to ~~be unreasonably withheld, conditioned~~ any other Eligible Assignee. Each assignor of a Receivable Interest or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor~~ any interest therein shall ~~not be deemed unreasonable))~~ notify its Investor Agent and the ~~Administrative~~ Program Agent and the Seller of any such assignment. Each assignor of a Receivable Interest or any interest therein may, in connection with the assignment, disclose to any assignee or potential assignee any information relating to the Seller or any Originator, Designated Entity or Intermediate SPV, including the Receivables, furnished to such assignor by or on behalf of the Seller or by the Program Agent or its Investor Agent; provided that, prior to any such disclosure, such assignee or potential assignee agrees to preserve the confidentiality of such information in accordance with the provisions of Section 11.06 hereof. (b) Each Bank may assign to any ~~Person~~ Eligible Assignee or to any other Bank all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Advances Outstanding~~ Bank Commitment and any Receivable Interests or interests therein owned by it) unless, ~~together with ratable portions~~ immediately after giving effect to such assignment, Seller would become obligated to pay amounts under Section 2.10(a) as a result of ~~its Commitment); provided that such consent shall be deemed to have been granted by~~ the ~~Borrower if the Borrower shall not have objected~~ deduction of taxes (in ~~writing within seven (7) Business Days of receipt of any such request for consent; provided~~which case, ~~further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any~~ such assignment shall be ~~required if~~ permitted only with the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a~~the Seller), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the ~~Administrative~~ Program Agent (with a copy to the ~~Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower~~assignor’s Investor Agent) an Assignment and Acceptance ~~and~~ (which includes, among other things, an agreement by the assignee to abide by all obligations applicable ~~tax forms required by Sections 12.03(f)~~to a Bank hereunder, ~~together with administrative details for the applicable assignee (if such assignee is not a current Lender or an Affiliate of Citibank, N.A.~~including Section 11.06). ~~Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 12.06(d)~~In addition, 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 notwithstanding any other provision of this Section ~~12.06~~11.03, ~~(x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder~~ each Bank or any of ~~their respective~~ its Affiliates may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of Capital and (yYield) ~~no assignment shall be made~~ under this Agreement or under the Asset Purchase Agreement of such Bank or the applicable Affiliate to secure obligations of such Bank or such Affiliate to any ~~Defaulting Lender~~Federal Reserve Bank, ~~a natural person~~ without notice to or consent of the Seller or the Program Agent or any ~~Person that, upon becoming~~ Investor Agent; provided that no such pledge or grant of a ~~Lender hereunder, would constitute~~ security interest shall release such Bank or the applicable Affiliate from any of its obligations hereunder or under the ~~foregoing Persons described in this clause (y)~~applicable Asset Purchase Agreement, as the case may be, or substitute any such pledgee or grantee for such Bank or Affiliate as a party hereto or to the Asset Purchase Agreement, as the case may be. (bc) This Agreement and the rights and obligations of the Program Agent herein shall be assignable by the Program Agent and its successors and assigns. (d) The ~~Borrower~~ Seller may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative~~ Program Agent and each Investor Agent. (e) Solely with respect the ~~Lenders.~~Groups the Investor Agent of which is BofA or JPMC: (i) ~~Any Lender may~~At any time on or prior to the Commitment Termination Date for the applicable Investor in such Group, ~~without~~ if the ~~consent~~ related Investor Agent on behalf of ~~(but with~~ such Investor so elects, by written notice ~~to)~~ to the ~~Borrower~~Program Agent, ~~sell participations~~ the Seller hereby irrevocably requests and directs that such Investor assign, and such Investor does hereby assign effective on the “Assignment Date” referred to ~~Participants in~~ below all or ~~a portion~~ such portions as may be elected by the Investor of its interest in the Capital and Receivable Interests at such ~~Lender’s rights~~ time to its Related Banks pursuant to this Section 11.03(e)(i) and ~~obligations under this Agreement~~ the Seller hereby agrees to ~~any Person other than a Competitor~~pay the amounts described in Section 11.03(e)(ii); provided that ~~(A)~~ unless 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~~ assignment is an assignment of all of such ~~obligations~~Investor’s interest in the Capital and Receivable Interests in whole on or after the Conduit Investment Termination Date (defined below), ~~(C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders~~ no such assignment shall ~~continue~~ take place pursuant to ~~deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by~~ this Section ~~12.06(c),~~ 11.03(e)(i) if an Event of Termination described in Section ~~12.06(e), Section 12.09~~ 7.01(g) shall then exist; and ~~Section 12.16. Any agreement~~ provided further that no such assignment shall take place pursuant to ~~which~~ this Section 11.03(e)(i) at 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~~ time when an event of any provision of this Agreement. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, bankruptcy with respect to ~~any participation~~such Investor exists. No further documentation or action on the part of such Investor or the Seller shall be required to exercise the rights set forth in the immediately preceding sentence, other than ~~its participating Lender would have been entitled~~ the giving of the notice by the related Investor Agent on behalf of such Investor referred to ~~receive, except~~ in such sentence and the delivery by the related Investor Agent of a copy of such notice to the ~~extent~~ Related Banks in the related Group (the date of the receipt by such ~~entitlement~~ Related Banks of any such notice being the “Assignment Date”). Each Related Bank in the related Group hereby agrees, unconditionally and irrevocably and under all circumstances, without setoff, counterclaim or defense of any kind, to ~~receive a greater~~ pay the full amount of its Assignment Amount (defined below) on such Assignment Date to the applicable Investor in immediately available funds to an account designated by the related Investor Agent. Upon payment ~~results from a Change~~ of its Assignment Amount, such Related Bank shall acquire an interest in ~~Law that occurs~~ the Capital and Receivable Interests equal to its pro rata share (based on the outstanding portions of the Capital funded by it) of the assigned portion of the Capital and Receivable Interests. Upon any assignment in whole by an Investor in such Group to its Related Banks on or after the ~~Participant acquired~~ Conduit Investment Termination Date as contemplated hereunder, such Investor shall cease to purchase any additional Receivable Interests hereunder. At all times prior to the ~~applicable participation. Each Lender that sells~~ Conduit Investment Termination Date, nothing herein shall prevent the Investor from making a ~~participation agrees~~subsequent purchase of Receivable Interests hereunder, ~~at the Borrowers’ request and expense~~in its sole discretion, following any assignment pursuant to ~~use reasonable efforts~~ this Section 11.03(e)(i) or from making more than one assignment pursuant to ~~cooperate with the Borrowers to effectuate the provisions of~~ this Section ~~2.20 with respect to any Participant~~11.03(e)(i). (ii) The Seller shall pay to the applicable Investor Agent, for the account of the applicable Investor, in connection with any assignment by such Investor to the Related Banks in its Group pursuant to Section 11.03(e)(i), an aggregate amount equal to all Yield to accrue through the end of the current Fixed Period to the extent attributable to the portion of the Capital so assigned to the Related Banks (which Yield shall be determined for such purpose using the Investor Rate most recently determined by the applicable Investor Agent) (as determined immediately prior to giving effect to such assignment), plus all other amounts then owing to such Investor (other than the Capital and other than any Yield not described above) related to the portion of the Capital so assigned to the Related Banks in its Group. If the Seller fails to make payment of such amounts at or prior to the time of assignment by the Investor to the Related Banks, such amount shall be paid by the Related Banks (in accordance with their respective pro rata shares) to the Investor as additional consideration for the interests assigned to the Related Banks and the amount of the “Capital” hereunder held by the Related Banks shall be increased by an amount equal to the additional amount so paid by the Related Banks. (iii) After any assignment in whole by an Investor to its Related Banks pursuant to Section 11.03(e)(i) at any time on or after the related Conduit Investment Termination Date, all payments to be made hereunder by the Seller or the Collection Agent to such Investor shall be made to the applicable Investor Agent’s account as such account shall have been notified to the Seller and the Collection Agent. (iv) In the event that ~~any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for~~ the ~~Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon)~~ aggregate of the ~~portion~~ Assignment Amounts paid by the Related Banks pursuant to Section 11.03(e)(i) on any Assignment Date occurring on or after the Conduit Investment Termination Date is less than the Capital of the ~~Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of~~ Investor on such ~~participation on the Participant Register (and each Note~~Assignment Date, 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 rights and obligations hereunder) to any Person except then to the extent ~~necessary to establish that such rights and obligations are~~ Collections thereafter received by its Investor Agent hereunder in ~~registered form under Section 5f.103-1~~ respect of the ~~United States Treasury Regulations. The entries in~~ Capital exceed the ~~Participant Register~~ aggregate of the unrecovered Assignment Amounts and Capital funded by such Related Banks, such excess shall be ~~conclusive absent manifest error, and~~ remitted by such ~~Lender shall treat each Person whose name is recorded in~~ Investor Agent to the ~~Participant Register as~~ Investor for the ~~owner~~ account of ~~such participation for all~~ the Investor. (v) For the purposes of this ~~Agreement notwithstanding any notice to the contrary. For the avoidance of doubt~~Section 11.03(e), the ~~Administrative Agent (in its capacity as Administrative Agent)~~ following terms shall have ~~no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as~~ the non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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.following definitions:

Appears in 1 contract

Samples: Receivable Interest Purchase Agreement (Ingersoll Rand Co LTD)

Assignability. Purchaser shall not assign this Agreement without first obtaining Seller’s written consent, provided however, that Purchaser may, without Seller’s consent, but with no less than five (a5) ~~Subject~~ business days written notice to Seller which notice will include the name of such assignee and the names of all principals and entities owning twenty-five percent (25%) or more of such assignee, assign this Agreement to an “Affiliate” of Purchaser or designate an “Affiliate” to take title, to the ~~conditions set forth~~ Property at Closing. “Affiliate” means any entity that is owned or controlled by an entity of which the general partners, managers or voting members are at least fifty-one (51%) percent owned or controlled by principals of Purchaser, and shall include trusts or other estate planning entities created for the benefit of such principals and their immediate family members. Any assignment in contravention of this ~~Section 12.06~~provision shall be void. No assignment, ~~each Lender may~~whether or not permitted, ~~with~~ shall release the ~~consent of the Borrower (such consent not to be unreasonably withheld, conditioned~~ Purchaser herein named from any obligation or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations liability under this ~~Agreement (including~~ Agreement. The Purchaser and any permitted assignee shall be jointly and severally liable for all ~~or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that~~ such ~~consent~~ obligations and liabilities. Any permitted assignee shall be deemed to have ~~been granted~~ made any and all representations and warranties made by ~~the Borrower~~ Purchaser hereunder, as if the ~~Borrower shall not have objected in writing within seven (7) Business Days of receipt of~~ assignee were the original signatory hereto. Purchaser acknowledges that any such ~~request for consent; provided, further, that: (i) neither~~ assignee shall be subject to Seller’s verification that such assignee can make the ~~Borrower’s nor the Administrative Agent~~representation set forth in Section 5.3.8. If Purchaser requests Seller’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register Purchaser shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). Each Lender severally represents to the Borrower, (i) on notify Seller in writing of 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~~ proposed assignment; (ii) ~~on each date on which it makes~~ provide Seller with the name and address of the proposed assignee; (iii) provide Seller with financial information, including current financial statements, for the proposed assignee; and (iv) provide Seller with a copy of the proposed instrument of assignment. Any transfer or assignment of any membership or other beneficial interest of Purchaser in excess of forty-nine percent (49%) shall be deemed an ~~Advance hereunder, that it is an Accredited Investor and a Qualified Purchaser. (f) Notwithstanding any other provision~~ assignment within the meaning of this Section 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 hereto11.4.

Appears in 1 contract

Samples: Purchase and Sale Agreement (New England Realty Associates Limited Partnership)

Assignability. (a) ~~Subject~~ This Agreement, the Note, the Swingline Note and the other Loan Documents shall be binding upon and shall inure to the ~~conditions set forth in this Section 12.06, each Lender may, with the consent~~ benefit of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) parties hereto and ~~the Administrative Agent, assign to any Person all or a portion of its rights~~ thereto and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective ~~Affiliates~~ successors and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The assigns EXCEPT that Borrower may not assign its rights hereunder or ~~obligations hereunder~~ thereunder or any interest herein or therein, whether by operation of law or otherwise, without the prior written consent of each Lender. Each Lender and Swingline Lender shall, with the ~~Administrative Agent~~ prior consent of each of Borrower and ~~the Lenders.~~ Agent, which consent in each case shall not be unreasonably withheld, (i) ~~Any Lender may, without~~ have the ~~consent of (but~~ right in accordance with ~~notice to) the Borrower,~~ this Section 11.12 to sell ~~participations to Participants in all or a portion of such Lender’s rights~~ and ~~obligations under this Agreement to any Person other than a Competitor; provided that~~ assign either (A) ~~such Lender’s obligations under this Agreement shall remain unchanged,~~ all of its interest or (B) ~~such Lender shall remain solely responsible~~ any portion of its interest equal to ~~the other parties hereto for the performance of such obligations~~or greater than Seven Million Five Hundred Thousand Dollars ($7,500,000), (C) the Borrower, the 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, the Note, the Swingline Note and the other Loan Documents and (Dii) ~~each Participant shall have agreed~~ to ~~be bound by this Section 12.06(c)~~grant any participation or other interest herein or therein; provided, ~~Section 12.06(e), Section 12.09 and Section 12.16. Any agreement pursuant to which~~ that if a Lender or Swingline Lender sells or assigns less than all of its interest under this Agreement and the other Loan Documents, it shall continue to hold at least a Seven Million Five Hundred Thousand Dollar ($7,500,000) interest after such ~~a participation shall provide~~ sale or assignment; provided further, that upon any such sale and assignment or participation, such Lender shall ~~retain the sole right~~ pay to ~~enforce this Agreement~~ Agent a documentation fee equal to Two Thousand Five Hundred Dollars ($2,500), unless such sale and assignment or participation is to ~~approve any amendment, modification or waiver~~ an Affiliate of any provision of this Agreement. The Borrower agrees that 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 such Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant. (iib) In Notwithstanding any other provision contained in this Agreement or any other Loan Document to the ~~event that~~ contrary, any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No Lender shall have any obligation to disclose assign all or any portion of the ~~Participant Register (including~~ Loans, the ~~identity of any Participant~~ Note or ~~any information relating to a Participant’s interest in any rights and obligations hereunder)~~ the Swingline Note held by it to any ~~Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of~~ Federal Reserve Bank or the United States Treasury ~~Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register~~ as ~~the owner of such participation for all purposes of this Agreement notwithstanding any notice~~ collateral security pursuant 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 non-fiduciary agent Regulation A of the ~~Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy~~ Board of ~~this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation~~ Governors of the ~~names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the Advances Outstanding maintained by each Lender under this Agreement (~~Federal Reserve System and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection Operating Circular issued by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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~~ provided that any payment in respect of such assigned Loans, Note or Swingline Note made by Borrower to or ~~consent~~ for the account of the ~~Borrower~~ assigning or pledging Lender in accordance with the ~~Administrative Agent; provided that no~~ terms of this Agreement shall satisfy Borrower's obligations hereunder in respect to such ~~pledge~~ assigned Loans, Note or ~~grant~~ Swingline Note to the extent of ~~a security interest~~ such payment. No such assignment shall release ~~such~~ the assigning Lender from ~~any of~~ its obligations ~~hereunder or substitute any such pledgee or grantee for such Lender as a party hereto~~hereunder.

Appears in 1 contract

Samples: Warehousing Credit Agreement (Leasing Solutions Inc)

Assignability. (a) ~~Subject~~ Any Lender may assign to ~~the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower~~ one or more assignees (~~such consent not~~ provided that no assignments shall be made to ~~be unreasonably withheld, conditioned~~ any Loan Party or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment~~ its Affiliates or to a ~~Competitor shall not be deemed unreasonable)~~natural Person) ~~and the Administrative Agent, assign to any Person~~ all or a portion of its rights and obligations under this Agreement (including all or a portion of its ~~Advances Outstanding~~ 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 Commitment)~~the Borrower Representative and the Administrative Agent; provided that ~~such~~ (x) no consent ~~shall be deemed to have been granted by~~ of 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) neither the Borrower’s nor~~ Representative or the Administrative ~~Agent’s consent to any such assignment~~ Agent shall be required ~~if the assignee is (A)~~ for an assignment to a Lender, an Affiliate of a Lender or ~~any~~ an Approved Fund and (y) no consent of ~~its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii)~~ the ~~Borrower’s consent to any such assignment pursuant to this Section 12.06(a)~~ Borrower Representative shall ~~not~~ be required if an Event of Default ~~shall have~~ has occurred and be is 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 (a)~~, ~~clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make~~ for an assignment to any ~~Person (~~other ~~than a Competitor) with notice to~~assignee; provided, ~~but without the consent of~~further, that the Borrower or Representative shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent if within five (5) Business Days after having received notice thereof. (b) With respect to any assignment hereunder (i) each such ~~Xxxxxx makes~~ assignment shall be of a ~~reasonable determination that its ownership~~ constant, and not a varying, percentage of ~~any of its~~ all rights or and obligations ~~hereunder is prohibited by Applicable Law; provided that~~under this Agreement, and (ii) the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. 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~~Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to ~~the Borrower) 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~~ be a ~~current Lender or an Affiliate of Citibank, N.A.~~party hereto). ~~Subject~~ At all times during which any Loan is outstanding, the Administrative Agent shall maintain at its address referred to ~~acceptance and recording thereof~~ in Section 10.02 of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent ~~pursuant~~ to ~~Section 12.06(d~~the other parties hereto) a register as provided herein (the “Register”)~~, from~~ . The names and ~~after~~ addresses of the ~~effective date specified in each Assignment and Acceptance~~Lenders, the ~~assignee thereunder~~ 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 ~~a party to this Agreement~~registered in the Register, and to the ~~extent~~ Register shall serve as a record of ownership that identifies the owner of the Aggregate Loan Principal Balances and any interest ~~assigned by such assigning Lender, have the rights and obligations of a Lender under this Agreement~~therein. Notwithstanding any other provision of this ~~Section 12.06~~Agreement, ~~(x)~~ no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any transfer of the ~~foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder~~ Aggregate Loan Principal Balances or any interest ~~herein without~~ therein shall be effective unless and until such transfer has been recorded in the ~~prior written consent of~~ 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~~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 this Agreement. This Section 10.03(c) shall be construed so that the Aggregate Loan Principal Balance and any interest therein is maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h) and 881(c) of the Code. Solely for the purposes of this Section 10.03(c), the Administrative Agent will act as a non-fiduciary agent of the Borrowers. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. (d) Upon its receipt of an Assignment and Acceptance, the 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 notice thereof to the Borrowers and to the Calculation Agent. (e) Any Lender may, without the consent of any Loan Party (~~but with notice to)~~ 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 hereunder (including the outstanding Loans); provided that following the sale of a participation under this Agreement ~~to any Person other than a Competitor; provided that~~ (Ai) the obligations of such ~~Lender’s obligations under this Agreement~~ Lender shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (Ciii) the ~~Borrower~~Borrowers, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16~~. 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 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 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”, “Thirty-Three Percent Lenders”, “Eighty-Five Percent Lenders”, “Supermajority Lenders” or Section 10.01. The Borrowers acknowledge and agree that any Lender’s source of funds may derive in part from its Participants. Accordingly, references in Section 2.09 or Section 2.10 and the other terms and provisions of this Agreement and the other Loan Documents to determinations, reserve and capital adequacy requirements, expenses, increased costs, reduced receipts and the like as they pertain to the Lenders shall be deemed also to include those of its Participants. The Borrower agrees that each Participant shall be entitled to the benefits of Sections ~~2.09~~ 2.09, 2.10, 2.11 and ~~12.03~~ 2.12 (subject to the requirements and limitations therein, including the requirements under Section ~~12.03(f~~2.12(f) (it being understood that the documentation required under Section ~~12.03(f~~2.12(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 ~~under clause~~ pursuant to paragraph (a) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.22 as if it were an assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any greater payment under Sections ~~2.09~~ 2.09, 2.10, 2.11 or ~~12.03~~2.12, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation ~~agrees~~shall, at acting solely for this purpose as an agent of the ~~Borrowers’ request and expense~~Borrower, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as 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~~ each Participant and the principal ~~amount~~ amounts (and stated ~~interest thereon~~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”)~~. 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~~ ; 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 ~~rights and~~ commitments, loans, letters of credit or its other obligations ~~hereunder~~under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent~~ ; provided that no consent of the ~~Borrower~~Borrower Representative shall be required if an Event of Default has occurred and is continuing. For the avoidance of doubt, it is understood and agreed that no Participant shall ~~maintain at its address specified in Section 12.02 or~~ have the additional rights and obligations granted to each “Approved Participant” under this Agreement unless the assignment to such ~~other address as~~ Participant has been approved by the Borrower Representative and the Administrative Agent ~~shall designate in writing~~ (and, if applicable, the related Assigning Lender has assigned its voting rights to ~~the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”~~such Participant) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon). The entries as further described in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the 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 and the owner definition of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document and each Lender hereunder, and each “Approved 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”). 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. (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 12.06~~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 1 contract

Samples: Loan Agreement (Invitation Homes Inc.)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 ~~Commitment~~Individual Lender Maximum Funding Amount); provided that 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) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~13.06(a) shall not be required (if (x) other than with respect to an assignment to an Ares Competitor) if (x), a Default shall have occurred and be continuing, or (y) other than with respect to an assignment to an Ares Competitor, such assignment is required by any Change in Law or (z) an Event of Default shall have occurred (and ~~be continuing; provided that~~ not been waived by the Lenders in ~~no event shall~~ accordance with Section 13.01) oxxxx either (y1) such assignment is required by any Change in Lawnot to an ~~assignment be made to a~~ Ares Competitor ~~without the Borrower’s prior written consent unless an~~ or (2) such Event of Default ~~arising pursuant to clause (a~~occurred under Section 6.01(a), ~~clause~~ (b) or ~~clause~~ (hi) ~~of Section 6.01 shall have occurred~~ and ~~be continuing; and~~ has been continuing for at least thirty (~~iii~~30) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliatesdays. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 13.03(g), 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 ~~12.06~~13.06, ~~(x)~~ no assignment ~~may be made~~ by any Lender to the ~~Borrower, the Collateral Manager, the Equityholder~~ Borrower or any of ~~their respective~~ its Affiliates ~~and (y) no assignment~~ shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~permitted. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Agents and the ~~Lenders~~Lenderseach Lxxxxx. (i) Any Lender may, without the consent of (other than with respect to a participation to an Ares Competitor), but with notice to) , the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this ~~Agreement to any Person other than a Competitor~~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~~ such Borrower, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section ~~12.06(c~~13.06(c), Section ~~12.06(e~~13.06(d), Section ~~12.09~~ 13.06(e) and Section ~~12.16~~13.17; provided, further that the consent of the Borrower shall not be required in connection with a participation to an Ares Competitor if an Event of Default shall have occurred under Section 6.01(a), (b) or (i) (and shall not been waived by the Lenders in accordance with Section 13.01) and such Event of Default has been continuing for at least thirty (30) days. 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. ~~The Borrower agrees that~~ 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; provided that such~~ Section 13.06 and (B) no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.10, 2.11, or 13.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive~~under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater ~~payment~~ amount results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 ~~Xxxxxx~~ Lxxxxx as ~~non-fiduciary~~ 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 (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”)~~. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No~~ ; 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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.the

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Ares Capital Corp)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, ~~conditioned~~ delayed or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)~~conditioned) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 ~~seven~~ five (75) Business Days of receipt of any such request for consent; provided, further, that: (i) ~~neither~~ the Borrower~~’s nor the Administrative Agent~~’s consent to any such assignment shall not be required if the assignee is ~~(A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor)~~an Eligible Assignee; (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing; and (iii) ~~notwithstanding anything herein~~ except in the case of an assignment of the entire remaining amount of the assigning Xxxxxx’s Commitment, the amount of the Commitment of the assigning Lender subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to the ~~contrary, each Lender may make an assignment to any Person (other~~ Administrative Agent) shall not be less than ~~a Competitor) with notice to, but without the consent of, the Borrower or~~ $1,000,000 unless the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliatesconsents otherwise. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~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~~ Live Oak) and ~~recording thereof by the Administrative Agent pursuant to Section 12.06(d), from~~ a processing 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~~ recordation fee of ~~the interest assigned~~ $4,200 payable by such assigning ~~Lender~~Lender to the Administrative Agent; provided, ~~have the rights and obligations~~ no such fee shall be required for assignments to current Lenders or Affiliates of ~~a Lender under this Agreement~~current Lenders. Notwithstanding any other provision of this Section 12.06, (xw) no assignment may be made to the ~~Borrower, the Collateral Manager, the Equityholder~~ Borrower or any of ~~their respective Affiliates and~~ its Affiliates, (yx) no assignment shall be made to a natural person, and (y) no assignment may be made to any Defaulting ~~Lender~~Lender or any of its Subsidiaries, ~~a natural person~~ or any Person ~~that~~who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment will be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Advances. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder becomes effective under Applicable Laws without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. (i) Any Lender ~~may, without the consent of (but with notice to) the Borrower,~~ may sell participations to Participants in all or a portion of such Lender’s rights and obligations under this ~~Agreement to any Person other than a Competitor~~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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that each Participant shall be entitled to the benefits of Sections ~~2.09~~ 2.09, 2.10, 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 under ~~clause (a) of this Section~~Section 12.06(a); provided that such Participant (A) agrees to be subject to the provisions of Section 12.16 as if it were an assignee under clause (D) above; and (B) shall not be entitled to receive any greater payment under ~~Sections~~ Section 2.09 or Section 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as ~~non-fiduciary~~ nonfiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”)) and the right to principal of, and stated interest on, such participation may be transferred only through being reflected in such Participant Register. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon) and the right to principal of, and stated interest on, the Advances of a Lender (other than as provided for participations in Advances in Section 12.06(c)(ii)) may be transferred only through being reflected in such Register. In addition, Agent shall maintain on the Register the designation, and the revocation of designation, of any Lender as a Defaulting Lender of which it has received notice. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower~~, the 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 ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. The provisions of this Section 12.06(d) are intended to satisfy the requirements of United States Treasury Regulation section 5f.103-1(c) and shall be interpreted and applied consistent with this intent. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Credit and Security Agreement (Saratoga Investment Corp.)

Assignability. (a) ~~Subject~~ No Company 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to a Borrower. (c) Each Lender may, with the consent of ~~the Borrower (such~~ Agent which consent shall not to be unreasonably withheld, ~~conditioned~~ but without the consent of any other Lender or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~any Company, assign to ~~any Person~~ one or more banks or other financial institutions all or a pro rata portion of its Commitments and rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such consent shall be deemed to have been granted by and the ~~Borrower if the Borrower shall not have objected in writing within seven (7) Business Days of receipt of any such request for consent~~Other Agreements; provided, ~~further, that:~~ that (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ thereto shall execute and deliver to Agent, for its acceptance and recording in the ~~Administrative Agent~~ Register (~~with~~ as defined below), an Assignment and Acceptance Agreement in the form attached hereto as Exhibit E (the "Assignment and Acceptance"), and a ~~copy~~ 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). 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 ~~Collateral Agent~~ 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~~Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to ~~the Borrower~~be a party hereto). (d) By executing and delivering 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 12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder ~~shall be a party~~ 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~~Agreement and the Other Agreements or the execution, ~~and to the extent of the interest assigned by such assigning Lender~~legality, ~~have the rights and obligations of a Lender under this Agreement. Notwithstanding any other provision~~ validity, enforceability, genuineness, sufficiency or value of this ~~Section 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder~~ Agreement or any of ~~their respective Affiliates~~ the Other Agreements, (ii) such assigning Lender makes no representation or warranty and ~~(y)~~ assumes no ~~assignment shall be made~~ responsibility with respect to the financial condition of any ~~Defaulting Lender, a natural person~~ Company or any ~~Person that, upon becoming a Lender hereunder, would constitute~~ other Obligor or the performance or observance by any ~~of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder~~ Company or any ~~interest herein without the prior written consent~~ other Obligor of the Administrative Agent 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 to any Person other than a Competitor; 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, 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 its obligations under this Agreement, ~~and~~ (Diii) ~~each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. 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~~ 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 Agent, such assigning Lender or any ~~amendment~~other Lender and based on such documents and information as it shall deem appropriate at the time, ~~modification~~ continue to make its own credit decisions in taking or ~~waiver~~ not taking action under this Agreement, (v) such assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of ~~any provision~~ the obligations which by the terms of this ~~Agreement. The Borrower agrees that each Participant shall~~ Agreement are required to 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) (~~performed by it ~~being understood that the documentation required under Section 12.03(f) shall be delivered to the participating~~ as a Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant. (iie) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address ~~specified~~ referred to in Section ~~12.02 or such other address as~~ 24 of the ~~Administrative Agent shall designate in writing to the Lenders,~~ Agreement a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of ~~the~~ Lenders and the ~~aggregate outstanding~~ Commitments of, and principal amount of the ~~Advances Outstanding 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~~each Company, ~~the Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agent and ~~the~~ Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by ~~the Borrower~~each Company, ~~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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (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 E hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Cantar U.S. Within five (5) Business Days after its receipt of such notice, each Borrower shall execute and deliver to Agent in exchange for the surrendered promissory note or notes, a new promissory note or notes to the order of the assignee in amounts equal to such assignee's commitments and outstanding Loans hereunder and, if the assigning Lender has retained a portion of the Loans, a new promissory note or notes to the order of the assigning Lender in an amount equal to the remaining commitments and outstanding loans hereunder of such assigning Lender under the terms of this Agreement. Such new promissory note or notes shall re-evidence the indebtedness outstanding under the old promissory note or notes and shall be in the aggregate principal amount of such surrendered promissory note or notes, shall be dated of even date herewith and shall otherwise be in substantially the form of the promissory note or notes subject to such assignment. (g) Each Lender may sell participations (without the consent of Agent, any Company 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 12.06~~Agreement (including, ~~any Lender may at any time pledge or grant a security interest in~~ without limitation, all or ~~any~~ a pro rata portion of its ~~rights~~ Commitments 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) each Company, 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 Cantar U.S. 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 information in its possession regarding any Company; provided, that so long as no Event of Default exists, such Lender shall not disclose information in violation of the confidentiality provisions of this Agreement and by law and equity and that any such proposed assignee agrees in writing to be bound thereby and is not a customer, supplier or competitor of any of ~~its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto~~the Companies.

Appears in 1 contract

Samples: Loan and Security Agreement (Polyair Inter Pack Inc)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) The parties recognize and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, acknowledge that: : (i) ~~neither~~ Licensee’s performance hereunder will require, and the ~~Borrower’s nor~~ Company will rely upon, the ~~Administrative Agent’s consent to any such assignment shall be required if~~ exercise of the ~~assignee is (A) a Lender or any~~ special creative skills, taste, personalities, industry standing and business acumen of ~~its Affiliates or (B) managed by a Lender or any~~ the present management and of ~~its Affiliates (so long as such assignee is not a Competitor);~~ those presently in control of Licensee; (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, Jxxx Xxxxx, 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 Mxxx, would frustrate the purpose of this ~~Section 12.06(a~~Agreement and adversely affect the marketing and sale of other items of marked under the Licensed Mxxx; 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 an Event of Default~~ assigned by Licensee nor shall Licensee have ~~occurred and be continuing; provided that in no event shall an assignment be made~~ the right to a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of sublicense its rights ~~or obligations hereunder is prohibited by Applicable Law; provided that~~hereunder, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent andwithout, in ~~the case of an Assignment and Acceptance~~either case, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Company, except that Licensee may assign this Agreement, in its entirety, to a company wholly owned and controlled by Jxxx Hxxxx for such time as such company is wholly owned and controlled by Jxxx Xxxxx. The Company agrees to consider, in good faith, a request by Licensee for such consent; provided, however, that in light of, inter alia, the ~~Lenders.~~ subjective nature of Licensee’s personal attributes upon which the Company will rely hereunder as described above, the Company shall have the sole discretion to refuse such request. For the purpose of this Paragraph 19.6 (~~i) Any Lender may~~and in addition to any direct assignment), ~~without~~ any direct or indirect sale or transfer, or successive sales or transfers in the ~~consent~~ aggregate, of ~~(but with notice to) the Borrower, sell participations to Participants in all or a~~ that portion of the capital stock (or interests therein) of Licensee or the voting rights of such ~~Lender~~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 ~~and obligations~~ under this Agreement ~~to any Person other than a Competitor; provided that (A) such Lender’s obligations~~ which requires the prior written consent of the Company. Any purported assignment, sublicense or transfer in violation of this Paragraph 19.6 shall be void and of no effect, shall be an event of default under this Agreement and shall ~~remain unchanged, (B) such Lender shall remain solely responsible~~ give the Company the right to the other parties hereto for the performance of such obligations, (C) the Borrower, the 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 terminate this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Licensing Agreement (Fashion House Holdings Inc)

Assignability. This Agreement and the other Transaction Documents shall be assignable (a) ~~Subject~~ in whole or in part, by Buyer to any Affiliate of Buyer, or (b) to any third party as of the Closing and subject to the ~~conditions set forth in this~~ payment of the amounts due under Section ~~12.06~~3.1(a) hereof to the Seller Entities, ~~each Lender may, with~~ provided that Buyer receives the consent of the ~~Borrower (such consent not to be unreasonably withheld~~Seller Entities, ~~conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor~~ which shall not be ~~deemed unreasonable))~~ unreasonably withheld or delayed, and ~~the Administrative Agent, assign to~~ provided further no such assignment shall relieve Buyer of any ~~Person all~~ liabilities or ~~a portion of its rights and~~ obligations under this Agreement ~~(including all~~ or any such assigned Transaction Documents or materially increase the expense or burden of the performance of the Seller Entities under this Agreement or any such assigned Transaction Documents. Any such assignees shall become a ~~portion~~ party hereto by execution of ~~its Advances Outstanding or interests therein owned~~ a Joinder Agreement in the form attached hereto. As contemplated by itSection 2.8 hereof, ~~together with ratable portions~~ in the event an assignment of ~~its Commitment); provided that~~ certain of Buyer’s rights hereunder is reasonably necessary in order to receive the consent of any Governmental Authority to the transactions contemplated hereby in a jurisdiction listed on Schedule 8.2 hereto, the Buyer may, but shall not be obligated to, so assign as and to the extent reasonably necessary to receive such consent and the parties hereto shall use commercially reasonable efforts to effect such assignment. Neither this Agreement nor any right or obligation hereunder may be ~~deemed to have been granted~~ assigned or delegated by the ~~Borrower if~~ Seller Entities without the ~~Borrower shall not have objected~~ prior written consent of Buyer in ~~writing within seven (7) Business Days of receipt of any such request for consent~~its sole discretion; provided, ~~further~~however, ~~that:~~ that the Seller Entities may freely assign or pledge their rights to payment hereunder to an Affiliate of the Seller Entities if (ia) ~~neither the Borrower’s nor the Administrative Agent’s consent to~~ any such assignment ~~shall be required if~~ or pledge of the ~~assignee is~~ right to receive payments hereunder, including the right to receive the shares of Common Stock issuable hereunder, complies with all applicable Laws, including all applicable foreign, federal and state securities Laws; (Ab) ~~a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to~~ any such assignment or pledge of the right to receive payments hereunder, including the right to receive the shares of Common Stock issuable hereunder, can be made without registration under applicable foreign, federal or state securities laws; (c) any such assignment or pledge of the right to receive payments hereunder, including the right to receive the shares of Common Stock issuable hereunder, does not require any filing with any Governmental Agency pursuant to ~~this Section 12.06(a~~the HSR Act or any similar Law; (d) upon any such assignment or pledge of the right to receive payments hereunder, including the right to receive the shares of Common Stock issuable hereunder, such party becomes a party to the Amended and Restated Investor Rights Agreement; and (e) 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 ~~not~~ be ~~required if an Event of Default~~ binding upon and enforceable by, and shall ~~have occurred~~ inure to the benefit of, the parties hereto and ~~be continuing; provided that in~~ their respective successors, executors, administrators, estates, heirs and permitted assigns, and 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 (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding others. Notwithstanding anything herein to the contrary, ~~each Lender may make an assignment to any Person (other than a Competitor) with notice to~~Buyer, ~~but~~ without the prior consent ofof the Seller Entities, may assign this Agreement and its rights and benefits hereunder and may delegate its duties hereunder to lenders providing financing to the ~~Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of~~ Buyer and/or any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)Affiliates. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Acquisition Agreement (Inverness Medical Innovations Inc)

Assignability. (ann) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the Administrative Agent and the Borrower (~~such consent~~ in each case not to be unreasonably ~~withheld, conditioned~~ withheld or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable~~delayed)~~) and the Administrative Agent~~, assign to ~~any Person~~ 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 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) ~~neither~~ the Borrower~~’s nor the Administrative Agent~~’s consent to any such assignment shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is~~ Permitted Assignee and not a ~~Competitor)~~Prohibited Assignee with respect to such assignor; (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~13.06(a) shall not be required if an Event of Default shall have occurred and is continuing (and not been waived by the Lenders in accordance with Section 13.01); (iii) the Borrower’s consent to any such assignment shall not be ~~continuing; provided that in~~ required if it becomes illegal for any Lender to hold Advances; (iv) no ~~event~~ assignment shall ~~an assignment~~ be made to a ~~Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b)~~ natural person or ~~clause (h) of Section 6.01 shall have occurred and be continuing~~any Prohibited Assignee; and (~~iii~~v) ~~notwithstanding anything herein~~ no assignment shall be made 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its ~~affiliates~~Affiliates or Subsidiaries. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the ~~Collateral Agent and, in~~ Borrower and the ~~case of an Assignment and Acceptance, to the Borrower~~Custodian) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 13.03(g) and (j), together with ~~administrative details for~~ a processing and recordation fee of $2,500, such fee to be paid by either the ~~applicable assignee (if such assignee is not a current~~ assigning 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~~ Lender or shared between such ~~assigning Lender, have the rights and obligations of a Lender under this Agreement~~Lenders. Notwithstanding any other provision of this Section 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 12.0613.06, 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~~ Xxxxxx as a party hereto.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)

Appears in 1 contract

Samples: Credit Agreement (Newtek Business Services Corp.)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) The parties recognize and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, acknowledge that: : (i) ~~neither~~ Licensee’s performance hereunder will require, and the ~~Borrower’s nor~~ Company will rely upon, the ~~Administrative Agent’s consent to any such assignment shall be required if~~ exercise of the ~~assignee is (A) a Lender or any~~ special creative skills, taste, personalities, industry standing and business acumen of ~~its Affiliates or (B) managed by a Lender or any~~ the present management and of ~~its Affiliates (so long as such assignee is not a Competitor);~~ those presently in control of Licensee; (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, Jxxx Xxxxx, has been a major factor in inducing the Company to enter into this Agreement, but for which assessment the Company could not have done so; (iii) the Company’s right to withhold approval of any and all Articles is an insufficient remedy to protect the Company from injury in the event performance hereunder were delegated to a third party who, in the Company’s judgment, did not possess all of the personal attributes described in subparagraphs (i) and (ii) of this paragraph, because the extensive exercise of such ~~assignment pursuant~~ right, if necessary to protect the prestige of each Licensed Mxxx, would frustrate the purpose of this ~~Section 12.06(a~~Agreement and adversely affect the marketing and sale of other items of marked under the Licensed Marks; and (iii) the understanding and intent of the parties are that, under applicable law, this Agreement constitutes a personal service contract and that Licensee’s performance hereunder is non-delegable as a matter of law. In light of the foregoing and of the personal nature of Licensee’s performance hereunder, this Agreement shall not be ~~required if an Event of Default~~ assigned by Licensee nor shall Licensee have ~~occurred and be continuing; provided that in no event shall an assignment be made~~ the right to a Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of sublicense its rights ~~or obligations hereunder is prohibited by Applicable Law; provided that~~hereunder, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent andwithout, in ~~the case of an Assignment and Acceptance~~either case, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Company, which consent may be withheld in its sole discretion, except that Licensee may assign this Agreement, in its entirety, to a company wholly owned and controlled by Jxxx Xxxxx for such time such company is wholly owned and controlled by Jxxx Xxxxx, with the ~~Lenders.~~ prior written consent by the Company, which consent may not be unreasonably withheld. The Company agrees to consider, in good faith, a request by Licensee for such consent; provided, however, that in light of, inter alia, the subjective nature of Licensee’s personal attributes upon which the Company will rely hereunder as described above, the Company shall have the sole discretion to refuse such request. For the purpose of this Paragraph 16.6 (~~i) Any Lender may~~and in addition to any direct assignment), ~~without~~ any direct or indirect sale or transfer, or successive sales or transfers in the ~~consent~~ aggregate, of ~~(but with notice to) the Borrower, sell participations to Participants in all or a~~ that portion of the capital stock (or interests therein) of Licensee or the voting rights of such ~~Lender~~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 ~~and obligations~~ under this Agreement ~~to any Person other than a Competitor; provided that (A) such Lender’s obligations~~ which requires the prior written consent of the Company. Any purported assignment, sublicense or transfer in violation of this Paragraph 16.6 shall be void and of no effect, shall be an event of default under this Agreement and shall ~~remain unchanged, (B) such Lender shall remain solely responsible~~ give the Company the right to the other parties hereto for the performance of such obligations, (C) the Borrower, the 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 terminate this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Licensing Agreement (Fashion House Holdings Inc)

Assignability. (a) Subject to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or ~~delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)~~delayed) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 ~~seven~~ five (75) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its ~~Affiliates (so long as such assignee is not a Competitor)~~Affiliates; (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ~~Xxxxxx~~ Lender makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. (i) Any Lender may, ~~without~~ with the consent of the Borrower (~~but with notice to~~such consent not to be unreasonably withheld, delayed or conditioned) to the ~~Borrower~~extent such consent is required for an assignment under Section 12.06(a), sell participations to Participants in all or a portion of such Lender’s rights and obligations under this ~~Agreement to any Person other than a Competitor~~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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 ~~Borrowers’~~ Borrower’s request and expense, to use reasonable efforts to cooperate with the ~~Borrowers~~ 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 ~~Xxxxxx~~ Lender as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Credit and Security Agreement (Blackstone Private Credit Fund)

Assignability. (a) ~~Subject~~ 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 ~~conditions set forth~~ extent such transfer would result in increased costs to Borrower (including, without limitation, under Section 4 of this ~~Section 12.06, each~~ Agreement). (c) Each Lender may, with the consent of ~~the~~ Agent and Borrower (~~such consent not to be unreasonably withheld~~provided, ~~conditioned or delayed (it being understood~~ that ~~the~~ Borrower’s ~~failure to~~ consent ~~to an assignment to a Competitor~~ (i) shall not be ~~deemed unreasonable~~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)~~) and~~ , but without the ~~Administrative Agent~~consent of any other Lender, assign to ~~any Person~~ 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 Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such consent shall be deemed to have been granted by and the ~~Borrower if the Borrower shall not have objected in writing within seven (7) Business Days of receipt of any such request for consent~~Other Agreements; provided, ~~further, that:~~ that (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ thereto shall execute and deliver to Agent, for its acceptance and recording in the ~~Administrative~~ 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). 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, (~~with~~ x) the assignee thereunder shall be a ~~copy~~ party hereto, and, to the ~~Collateral Agent~~ 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 prior to such assignment pursuant to Section 23 of this Agreement which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance~~Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to ~~the Borrower) 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~~ be a ~~current Lender or an Affiliate of Citibank, N.A.~~party hereto). ~~Subject to acceptance~~ Any attempted assignment or transfer in violation of this Section 20(c) shall be null and ~~recording thereof by the Administrative Agent pursuant to Section 12.06(d), from~~ void. (d) By executing and ~~after the effective date specified in each~~ 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 ~~be a party~~ 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 ~~extent~~ 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 ~~assigned~~ 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 ~~such~~ an assigning Lender, ~~have~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the ~~rights~~ form of Exhibit D hereto, and ~~obligations~~ 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. ~~Notwithstanding any other provision of this Section 12.06, (x) no assignment may be made to~~ Such new promissory note or notes shall re-evidence the ~~Borrower,~~ indebtedness outstanding under the ~~Collateral Manager, the Equityholder~~ old promissory note or ~~any of their respective Affiliates~~ notes and ~~(y) no assignment~~ shall be ~~made to any Defaulting Lender~~in the aggregate principal amount of such surrendered promissory note or notes, ~~a natural person or any Person that, upon becoming a Lender hereunder, would constitute any~~ shall be dated of even date herewith and shall otherwise be in substantially the form of the ~~foregoing Persons described in this clause (y)~~promissory note or notes subject to such assignment. (bg) ~~The Borrower~~ Each Lender may ~~not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders.~~ sell participations (~~i) Any Lender may,~~ without the consent of Agent, Borrower or any other Lender) to one or more parties, in or to all (~~but with notice to) the Borrower, sell participations to Participants in all~~ or a ~~portion~~ portion) of ~~such Lender’s~~ 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 ~~any Person other than a Competitor~~it); ~~provided~~ provided, that (Ai) such Lender’s obligations under this Agreement shall remain unchanged, (Bii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (Ciii) ~~the~~ Borrower, ~~the Agents~~Agent, ~~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 or any Other Agreement, ~~and~~ (Div) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall ~~retain~~ not transfer, grant, assign or sell any participation under which the ~~sole right to enforce this Agreement and~~ participant shall have rights to approve any ~~amendment, modification~~ amendment or waiver of this Agreement or any ~~provision of this Agreement. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.09~~ Other Agreement and ~~12.03~~ (~~subject to the requirements and limitations therein, including the requirements under Section 12.03(f~~v) (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 under clause (a) of this Section; provided that any such ~~Participant~~ participant shall not be entitled to receive any greater ~~payment~~ payments under ~~Sections 2.09~~ this Agreement or ~~12.03, with respect to~~ any ~~participation,~~ Other Agreement than ~~its participating~~ such Lender would have been entitled to ~~receive, except to the extent such entitlement to~~ receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to ~~any Participant~~the 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~~manner or under any circumstances that would require registration or qualification of, ~~such Xxxxxx as non-fiduciary agent for~~ or filings in respect of, any Loan or other Liabilities under the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 securities laws of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of ~~such participation for all purposes~~ America or 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 non-fiduciary agent of the~~ such Lender may disclose any information in its possession regarding Borrower, ~~shall maintain at its address specified~~ provided that any assignee or participant or any potential assignee or participant agrees to follow and be bound by the confidentiality requirements set forth in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.0628 hereof. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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

Samples: Loan and Security Agreement (Apac Customer Service Inc)

Assignability. (a) ~~Subject~~ This Agreement and the Investors’ rights and obligations herein (including ownership of each Receivable Interest) shall be assignable by the Investors and their successors and assigns (including, without limitation, pursuant to the ~~conditions set forth in this Section 12.06, each Lender may,~~ Asset Purchase Agreement) with the ~~consent of the Borrower (such consent not to be unreasonably withheld~~Seller’s consent, ~~conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor~~ which shall not be ~~deemed unreasonable)~~unreasonably withheld or delayed, provided that Seller’s consent shall not be required (i) if the assignment shall be to an Eligible Assignee pursuant to the Asset Purchase Agreement, which Eligible Assignee either is eligible to deliver the forms required under Section 2.10(d)(i) or is a “United States person” within the meaning of §7701(a)(30) of the Internal Revenue Code of 1986, as amended, (ii) if there shall occur an Event of Termination or (iii) if the assignment shall be to another receivables investment company managed and/or sponsored by Citibank or any of its Affiliates that is a “United States person” within the meaning of §7701(a)(30) of the Internal Revenue Code of 1986, as amended. Each assignor of a Receivable Interest or any interest therein shall notify the Agent and the ~~Administrative~~ Seller of any such assignment. Each assignor of a Receivable Interest or any interest therein may, in connection with any such assignment, disclose to the assignee or potential assignee any information relating to the Seller, the Originator or EDS, including the Receivables, furnished to such assignor by or on behalf of the Seller or by the 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 Bank may assign to any ~~Person~~ Eligible Assignee, which Eligible Assignee either is eligible to deliver the forms required under Section 2.10(d)(i) or is a “United States person” within the meaning of §7701(a)(30) of the Internal Revenue Code of 1986, as amended, or to any other Bank all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Advances Outstanding~~ Bank Commitment and any Receivable Interests or interests therein owned by it~~, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, ~~further~~however, ~~that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any~~ that such assignment shall be ~~required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (~~limited so ~~long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant~~ that no more than 10 Banks shall be parties to this Section 12.06(a) shall not be required if 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 (a)Agreement, ~~clause (b)~~ whether initially or ~~clause (h) of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary~~by assignment, ~~each Lender may make an assignment to~~ at any Person (other than a Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliatestime. The parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent ~~(with a copy to the Collateral Agent and, in the case of~~ an Assignment and Acceptance. In addition, Citibank or any of its Affiliates may assign any of its rights (including, without limitation, rights to ~~the Borrower~~payment of Capital and Yield) ~~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~~ under this Agreement to any Federal Reserve Bank without notice to 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 consent of the ~~interest assigned by such assigning Lender, have~~ Seller or the Agent. (c) This Agreement and the rights and obligations of ~~a Lender under this Agreement. Notwithstanding any other provision of this Section 12.06, (x) no assignment may be made to~~ the ~~Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment~~ Agent herein shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of~~ assignable by the ~~foregoing Persons described in this clause (y)~~Agent and its successors and assigns. (bd) The ~~Borrower~~ Seller may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent and the Lenders~~Agent. (ie) ~~Any Lender~~ Each of CAFCO and CXXXXX may, without the consent of ~~(but with notice to)~~ the ~~Borrower~~Seller, 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 hereunder (including the outstanding Receivable Interests); provided that following the sale of a participation under this Agreement ~~to any Person other than a Competitor; provided that~~ (Ai) ~~such Lender’s~~ the obligations ~~under this Agreement~~ of the applicable Investor shall remain unchanged, (Bii) such ~~Lender~~ Investor shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (Ciii) the ~~Borrower~~Seller, the ~~Agents~~Agent, ~~the Collateral Administrator, the Custodian~~ and the ~~Securities Intermediary and the other Lenders~~ Banks shall continue to deal solely and directly with such ~~Lender~~ Investor in connection with such ~~Lender~~Investor’s rights and obligations under this Agreement~~, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16~~. Any agreement or instrument pursuant to which ~~a Lender sells~~ CAFCO or CXXXXX xxxxx 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 Transaction Documents or to approve any amendment, modification or waiver of any provision of this ~~Agreement. The Borrower agrees that each Participant shall be entitled to~~ Agreement or 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 under clause (a) of this Sectionother Transaction Documents; provided that such ~~Participant~~ agreement or instrument may provide that the applicable Investor will not, without the consent of the Participant, agree to any amendment, modification or waiver that (i) reduces the amount of Capital or Yield that is payable on account of any Receivable Interest or delays any scheduled date for payment thereof or (ii) reduces any fees payable by the Seller to the Agent (to the extent relating to payments to the Participant) or delays any scheduled date for payment of such fees. The Seller acknowledges and agrees that CAFCO’s and CXXXXX’x source of funds may derive in part from its Participants. Accordingly, references in Sections 2.08, 2.09, 2.10, 6.07, 9.01 and 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 CAFCO or CXXXXX shall be deemed also to include those of its Participants; provided that the Seller shall not be ~~entitled~~ required to ~~receive~~ pay higher costs, taxes, expenses and indemnification amounts pursuant to this sentence than would be required to be paid by the Seller in the absence of the sale of any ~~greater payment under Sections 2.09~~ participation by CAFCO or ~~12.03~~CXXXXX to a Participant as contemplated by this Section 10.03(e). CAFCO, CXXXXX or the Agent may, in connection with ~~respect~~ any such participation, disclose to Participants and potential Participants any information relating to the Seller, the Originator or EDS, including the Receivables, furnished to CAFCO, CXXXXX or the Agent by or on behalf of the Seller; provided that, prior to any ~~participation~~such disclosure, ~~than its participating Lender would have been entitled~~ such Participant or potential Participant agrees to ~~receive, except to~~ preserve the ~~extent~~ confidentiality of any such ~~entitlement to receive a greater payment results from a Change~~ information which is confidential in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate accordance with ~~the Borrowers to effectuate~~ the provisions of Section ~~2.20 with respect~~ 10.06 hereof. Any interest sold by CAFCO or CXXXXX to ~~any Participant~~a Bank or its designee under the Asset Purchase Agreement shall not be considered a participation for the purpose of this Section 10.03(e) (and the Bank or its designee shall not be considered a Participant as a result thereof). (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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. (df) The ~~Administrative Agent, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Borrower,~~ Agent shall maintain at its address ~~specified~~ referred to in Section ~~12.02 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, each signature page hereto,~~ each Assignment and Acceptance Agreement delivered to and accepted by ~~it,~~ it and a register for the recordation of the names and addresses of the Investors, the Banks, the Participants, and their respective assignees, the Investor Purchase Limit of each Investor, the percentage of the related Investor’s Receivable Interests held by each Participant, and the Bank Commitment of each Bank, and aggregate outstanding Capital of Receivable Interests or interests therein owned by, each Bank and each Investor from time to time (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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~~Seller, the ~~Collateral Manager~~Originator, the ~~Agents~~Agent, the ~~Collateral Administrator~~Investors, the ~~Custodian, the Securities Intermediary~~ Participants and the ~~Lenders shall~~ Banks may treat each ~~Person~~ person whose name is recorded in the Register as a ~~Lender and the owner of the amounts owing to it~~ Bank under ~~the Facility Documents as reflected in the Register~~ this Agreement for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower~~Seller, ~~the Collateral Manager~~any Investor, ~~the Collateral Agent~~ any Participant or any ~~Lender~~ Bank at any reasonable time and from time to time upon reasonable prior notice. ~~An Advance (and a Note~~As between the Seller, ~~if any, 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document and each Lender hereunderone hand, and ~~each Participant~~the Investors, ~~must at all times be an “accredited investor” as defined in paragraphs (1), (2), (3)~~the Banks and the Participants, and ~~(7) of Rule 501(a) under~~ their respective assignees, on the ~~Securities Act (an “Accredited Investor”) and a “qualified purchaser” as defined~~ other hand, no Receivable Interest transfer will be recognized unless reflected in the Investment Company Act (a “Qualified Purchaser”). 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 PurchaserRegister. (f) Notwithstanding any other provision of this Section 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

Samples: Receivables Purchase Agreement (Electronic Data Systems Corp /De/)

Assignability. ~~(a) Subject to~~ Neither the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor Company nor any Stockholder shall ~~not be deemed unreasonable)) and the Administrative Agent,~~ assign ~~to any Person all or a portion of its rights and obligations under~~ ------------- this Agreement ~~(including all~~ in whole or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein part without the prior written consent of Parent, except by the ~~Administrative Agent~~ operation of law. Upon notice to the Majority Stockholders (which may be delivered to the Attorney-in-Fact), Parent 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~~ Subsidiary and ~~obligations under~~ any Permitted Assignee may assign this Agreement to any ~~Person~~ Permitted Assignee. "Permitted Assignee" as used herein and shall include (i) any financial institution (or its affiliates) providing financing (or refinancing) to Parent, the Company or any other ~~than~~ direct or indirect wholly-owned subsidiary of Parent; (ii) after the Closing Date, any person or entity, (iii) prior to the Closing Date, any person or entity with the prior written consent of the Attorney-in-Fact, which consent shall not be unreasonably withheld, and (iv) after the Closing Date, any other person or entity that is a ~~Competitor; provided~~ transferee or assignee from any entity described in clause (i) as a result of any foreclosure, sale or deed in lieu of foreclosure, deed or similar conveyance relating to the exercise of rights under a security instrument. The warranties, representations, obligations, agreements and indemnities (in Section 6 and elsewhere herein) and the other documents contemplated hereby will inure to the benefit of the Permitted Assignees to the extent they inure to the benefit of Parent herein. Parent shall remain liable hereunder notwithstanding any assignment hereof by it, unless otherwise consented to by the Attorney-in-Fact, which consent shall not be unreasonably withheld. Any assignment made or attempted in violation of this Section 9.3 shall be void and of no effect. This Agreement shall be binding on the Stockholders, Parent, and their respective heirs, legal representatives, successors and permitted assigns, provided, however, 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be ~~entitled to receive any greater payment under Sections 2.09~~ binding upon the financial institutions, affiliates, purchasers or ~~12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change~~ grantees described in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant. clauses (ii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document and each Lender hereunder, and each Participant, must at all times be an “accredited investor” as defined in paragraphs (1), (2), (3i), and (7iv) 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”). 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. (f) Notwithstanding any other provision third sentence of this Section ~~12.06~~9.3, but any ~~Lender may at any time pledge~~ such financial institutions, affiliates, purchasers or ~~grant a security interest in~~ grantees shall take this Agreement subject to all ~~or any portion~~ of ~~its~~ the rights ~~(including rights to payment~~ of ~~principal~~ the Attorney- in-Fact and ~~interest)~~ the Stockholders and the obligations of the Parent under this ~~Agreement to secure obligations~~ Agreement. Notwithstanding the foregoing, no assignment by Parent, or by the Company following the Closing Date, shall in any way increase any liability or obligation 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 heretoStockholder under this Agreement.

Appears in 1 contract

Samples: Agreement and Plan of Exchange (Group Maintenance America Corp)

Assignability. (a) ~~Subject to~~ The rights and obligations of Seller under the ~~conditions set forth in this Section 12.06~~Transaction Documents, ~~each Lender may~~the Hedging Transactions and under any Transaction shall not be assigned by Seller without the prior written consent of Buyer. (b) Buyer may at any time, ~~with~~ without the consent of ~~the Borrower (such consent not~~ but with notice to ~~be unreasonably withheld~~Seller, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) neither the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make an assignment sell participations to any Person (other than (1) a ~~Competitor~~natural Person or (2) ~~with notice to~~Seller, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager Guarantors or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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~~Seller or Guarantors, ~~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~~ or (3) any Prohibited Transferee) (a “Participant”) 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder all or any portion of ~~their respective Affiliates and (y)~~ Buyer’s rights and/or obligations under the Repurchase Documents; provided, however, that so long as no ~~assignment shall be made~~ Event of Default exists, with respect to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders. participations only (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 to any Person other than a Competitor; provided that (A) such LenderBuyer’s obligations under ~~this Agreement~~ the Transaction Documents shall remain unchanged, (Bii) ~~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, (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 ~~Borrower~~views and opinions of any participants under this Agreement), ~~the Agents, the Collateral Administrator, the Custodian~~ and ~~the Securities Intermediary and the other Lenders~~ (iii) Seller shall continue to deal solely and directly with ~~such Lender~~ Buyer in connection with ~~such Lender~~Buyer’s rights and obligations under the Repurchase Documents; and provided, further that, so long as no Event of Default exists, any consent rights of such third parties (other than affiliates of Buyer) shall be limited to reductions in the Repurchase Price, reductions in other amounts payable by Seller or Guarantor (other than reductions resulting from an early repurchase or otherwise pursuant to Section 3(h)), extension of dates for (other than Seller’s election of its Extension Option pursuant to this Agreement), and ~~(D) each Participant shall have agreed to be bound by this Section 12.06(c)~~reductions in amounts of, ~~Section 12.06(e)~~other required payments of the Repurchase Price, ~~Section 12.09~~ other customary non-material matters and ~~Section 12.16. Any agreement~~ releases of Seller, Guarantor, Underlying Obligors or Purchased Loans, except 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. ~~The Borrower agrees~~ For the avoidance of doubt, the parties agree that ~~each Participant~~ any participant shall be entitled to the benefits of ~~Sections 2.09~~ Section 3(n) and ~~12.03~~ Section 25 (subject to the requirements and limitations therein, including the requirements under Section ~~12.03(f~~25(d) and Section 25(e) (it being understood that the documentation required under Section ~~12.03(f~~25(d) and Section 25(e) shall be delivered to the participating ~~Lender~~Buyer)) to the same extent as if it ~~were a Lender and~~ had acquired its interest by ~~assignment under clause (a) of this Section;~~ assignment, provided that such ~~Participant~~ participant shall not be entitled to receive any greater payment under ~~Sections 2.09~~ Section 3(n) or ~~12.03, with respect to any participation,~~ Section 25 than its participating ~~Lender~~ Buyer would have been entitled to ~~receive~~receive with respect to the interest sold to such participant, except to the extent such entitlement to receive a greater 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. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant. (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 ~~Xxxxxx~~ 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 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 ~~of all participants in the Advances held by it~~ and ~~the principal amount (and stated interest thereon)~~ address of the ~~portion of~~ applicable participant and, with respect to each such participant, the ~~Advance which is the subject of the participation~~ participated Repurchase Price and Price Differential (the “Participant Register”). ~~An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide).~~ 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 ~~rights and~~ obligations ~~hereunder~~under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and ~~such Lender~~ the participating Buyer shall treat each Person whose name is recorded in the Participant Register as the owner of ~~such~~ the applicable 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (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 12.06~~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

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

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 ~~Commitment~~Individual Lender Maximum Funding Amount); provided that 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) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~13.06(a) shall not be required if (x) an Event of Default shall have occurred (and ~~be continuing;~~ 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 (provided that ~~in no event~~ each Lender shall an use its commercially reasonable efforts to not make any such assignment ~~be made~~ pursuant to this clause (y) to a ~~Competitor without the Borrower’s prior written consent unless an Event of Default arising pursuant to clause (a~~Disqualified Institution), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 13.03(g), 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 ~~12.06~~13.06, ~~(x)~~ no assignment ~~may be made~~ by any Lender to the ~~Borrower, the Collateral Manager, the Equityholder~~ Borrower or any of ~~their respective~~ its Affiliates ~~and (y) no assignment~~ shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~permitted. (b) ~~The~~ Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Agents 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 to any Person other than a Competitor~~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~~ such Borrower, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such ~~Lender~~Xxxxxx’s rights and obligations under this Agreement, ~~and~~ (D) each Participant shall have agreed to be bound by this Section ~~12.06(c~~13.06(c), Section ~~12.06(e~~13.06(d), Section ~~12.09~~ 13.06(e) and Section ~~12.16~~13.17 and (E) such Participant is not a Disqualified Institution. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. ~~The Borrower agrees that~~ 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; provided that such~~ Section 13.06 and (B) no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.10, 2.11, or 13.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive~~under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater ~~payment~~ amount results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as ~~non-fiduciary~~ 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 ~~thereon~~on) of the portion of the Advance which is the subject of the participation (the “Participant Register”)~~. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No~~ ; 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 ~~rights and~~ commitments, loans or its other obligations ~~hereunder~~under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in ~~the~~ a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~the~~ such Participant Register as the owner of such participation for all purposes of this ~~Agreement~~ Agreement, notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) The Administrative Agent, on behalf of and acting solely for this purpose as the ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section ~~12.02~~ 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of this Agreement, notwithstanding any notice to the ~~Facility Documents~~contrary. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances~~Note, if any, shall expressly so provide) and compliance with this Section ~~12.06~~13.06. The Administrative 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 and~~ Document, 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~~ 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~~Purchaser and 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 ~~12.06~~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

Samples: Credit Agreement (T. Rowe Price OHA Select Private Credit Fund)

Assignability. (a) ~~Subject~~ The Borrower shall not have the right to assign or delegate this Credit Agreement or any interest therein except with the prior written consent of the Agent and each Lender. (b) Any Lender may make, carry or transfer Revolving Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender except to the ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to the Borrower. (c) A Lender may, with the consent of the Agent and, prior to the occurrence of an Event of Default, with the consent of the Borrower (~~such consent~~ which may not to be unreasonably withheld~~, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable~~)~~) and the Administrative Agent~~, assign to ~~any Person~~ 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 Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment)~~and the Revolving Notes; provided that 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) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each -------- such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ thereto shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Assumption Agreement, together with any Revolving Note or Revolving Notes subject to such assignment and a processing and recordation fee of $3,500, (ii) no such assignment shall be for less than $10,000,000 of a Lender's Commitment or, if less, the entire amount of such Lender's Commitment and (iii) the consent of the Agent (and the Borrower shall not be required in connection with ~~a copy~~ an assignment to an Affiliate. Upon execution and delivery of the Assignment and Assumption Agreement to the ~~Collateral Agent~~ Agent, from and after the date specified as the effective date in the Assignment and Assumption Agreement, (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 Section 11.8 hereof which will survive) and be released from its obligations under this Credit Agreement (and, in the case of an Assignment and ~~Acceptance, to~~ Assumption Agreement covering all or the ~~Borrower)~~ remaining portion of 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 's rights and obligations under this ~~Agreement to any Person other than a Competitor; provided that (A) such Lender’s obligations under this Agreement shall remain unchanged~~Credit Agreement, ~~(B)~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed cease to be ~~bound by this Section 12.06(c~~a party hereto), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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~~ By executing and delivering an Assignment and Assumption Agreement, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Assumption Agreement, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, the Revolving Notes or any other instrument or document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Credit Parties or the performance or observance by the Borrower or any other Credit Parties of any of its obligations under this Credit Agreement or any other instrument or document furnished pursuant hereto, (iii) such assignee confirms that it has received a copy of this Credit Agreement, together with copies of the Financial Statements referred to in Section 7.1 hereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption Agreement, (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Credit Agreement, (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf of and ~~acting solely for~~ to exercise such powers under this ~~purpose~~ Credit Agreement as are delegated to the ~~non-fiduciary 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 ~~12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders,~~ 11.5 hereof a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and ~~Acceptance~~ Assumption Agreement delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the Lenders and the ~~aggregate outstanding~~ Commitments of, and principal amount of the ~~Advances Outstanding 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, the ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agent and the Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register and copies of each Assignment and Assumption shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) ~~Notwithstanding~~ Upon its receipt of an Assignment and Assumption Agreement executed by an assigning Lender, together with the Revolving Note or Revolving Notes subject to such assignment, the Agent shall, if such Assignment and Assumption Agreement has been completed and is in substantially the form of Exhibit F hereto, (i) accept such Assignment and Assumption Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within five (5) Business Days after its receipt of such notice, the Borrower shall execute and deliver to the Agent in exchange for the surrendered Revolving Note or Revolving Notes a new Revolving Note or Revolving Notes to the order of the assignee in an amount equal to the Commitment or Commitments assumed by it pursuant to such Assignment and Assumption Agreement and, if the assigning Lender has retained a Commitment or Commitments hereunder, a new Revolving Note or Revolving Notes to the order of the assigning Lender in an amount equal to the Commitment or Commitments retained by it hereunder. Such new Revolving Note or Revolving Notes shall re-evidence the Indebtedness outstanding under the old Revolving Note or Revolving Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Note or Revolving Notes, and shall otherwise be in substantially the form of the Revolving Note or Revolving Notes subject to such assignments. (g) Each Lender may sell participations (without the consent of the Agent, the Borrower or any other ~~provision of this Section 12.06, any Lender may at any time pledge~~ Lender) to one or ~~grant a security interest~~ more parties in or to all or ~~any~~ a portion of its rights and obligations under this Credit Agreement (~~including~~ including, without limitation, all or a portion of its Commitment, the Revolving Loans owing to it and the Revolving Note or Revolving Notes held by it); provided that (i) such Lender's obligations under this Credit -------- Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Revolving Note for all purposes of this Credit Agreement, (iv) the Borrower, the Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Credit Agreement and (v) such Lender shall not transfer, grant, assign or sell any participation under which the participant shall have rights to ~~payment~~ approve any amendment or waiver of this Credit Agreement except to the extent such amendment or waiver would (A) extend the final maturity date or the date for the payments of any installment of fees or principal or interest of any Revolving Loans or Letter of Credit reimbursement obligations in which such participant is participating, (B) reduce the amount of any installment of principal ~~and interest~~of the Revolving Loans or Letter of Credit reimbursement obligations in which such participant is participating, (C) ~~under this Agreement~~ reduce the interest rate applicable to ~~secure~~ the Revolving Loans or Letter of Credit reimbursement obligations of in which such ~~Lender~~participant is participating, ~~including~~ or (D) 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 and the Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Revolving Loan, Revolving Note or other obligation under the ~~Administrative Agent; provided that no such pledge~~ securities laws of the United States of America or ~~grant~~ of ~~a security interest shall release~~ any jurisdiction. (i) In connection with the efforts of any Lender to assign its rights or obligations or to participate interests, such Lender ~~from~~ may disclose any of information in its ~~obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto~~possession regarding the Borrower and its Subsidiaries.

Appears in 1 contract

Samples: Credit Agreement (Wickes Inc)

Assignability. (a) ~~Subject~~ 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 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 ~~conditions set forth~~ 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 ~~Section 12.06~~Agreement, ~~each~~ the Notes and the other Loan Documents the Lender ~~may~~shall cease to be a party hereto). If a bank syndicate is formed, ~~with~~ the Lender agrees to serve as agent thereof. (d) The Lender may sell participations (without the consent of the ~~Borrower (such consent not~~ Borrower) to ~~be unreasonably withheld, conditioned~~ one or ~~delayed (it being understood that the Borrower’s failure~~ more parties in or to ~~consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign to any Person~~ all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Advances Outstanding~~ Commitment, the Loans owing to it and the Note or ~~interests therein owned~~ Notes held by it~~, together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, ~~further~~however, ~~that:~~ that (i) ~~neither~~ the Borrower’s nor the Administrative Agent’s consent to any such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 's obligations under this Agreement and the other Loan Documents (including, without limitation, its Commitment to ~~any Person other than a Competitor; provided that (A~~the Borrower hereunder) ~~such Lender’s obligations under this Agreement~~ shall remain unchanged, (Bii) ~~such~~ the Lender shall remain solely responsible to the Borrower and the other ~~parties hereto~~ Loan Parties for the performance of such obligations, (Ciii) the ~~Borrower~~Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary 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,~~ Agreement and (Dv) ~~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 12.06(c), Section 12.06(e), Section 12.09 and Section 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 rights to approve any ~~amendment, modification~~ amendment or waiver of ~~any provision of~~ this Agreement. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, Agreement except to the extent such ~~entitlement to receive a greater payment results from a Change~~ 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 of any Loans or Reimbursement Obligations in ~~Law that occurs after~~ which such participant is participating, (B) reduce the ~~Participant acquired~~ amount of any installment of principal of any Loans or Reimbursement Obligations in which such participant is participating, (C) reduce the interest rate applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any ~~Participant.~~ Loans or Reimbursement Obligations in which such participant is participating, or (iiD) ~~In the event that any Lender sells participations~~ except as otherwise expressly provided in any portion of its rights and obligations hereunder, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the Advances Outstanding maintained by each Lender under this Agreement (and reduce any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect fees payable to the ~~Advances, if any, shall expressly so provide) and compliance with this Section 12.06~~Lender hereunder. (e) ~~Notwithstanding anything to~~ The Lender agrees that, without the contrary set forth herein or in any other Facility 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) prior written consent 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”). Each Lender severally represents to the Borrower, ~~(i) on~~ 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 ~~date that it becomes a party to this Agreement (whether by being a signatory hereto~~ Notes under the securities laws of the United States of America 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~~of any other jurisdiction. (f) ~~Notwithstanding any other provision~~ In connection with the efforts of ~~this Section 12.06~~the Lender to assign its rights or obligations or to participate interests, ~~any~~ the Lender may at disclose to any ~~time pledge or grant a security interest~~ proposed participant and their counsel any 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 possession regarding the Borrower or any Loan Party, subject to the ~~Administrative Agent; provided that no such pledge or grant~~ provisions 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~~Section 10.09.

Appears in 1 contract

Samples: Credit Agreement (Travel Services International Inc)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 ~~Commitment~~Individual Lender Maximum Funding Amount); provided that 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) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~13.06(a) shall not be required if (x) a Default or an Event of Default shall have occurred (and ~~be continuing; provided that~~ not been waived by the Lenders 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 (a), clause (b~~accordance with Section 13.01) or ~~clause~~ (hy) ~~of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make an~~ such assignment to is required by any Person (other than a Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Change in Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 13.03(g), 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 ~~12.06~~13.06, ~~(x)~~ no assignment ~~may be made~~ by any Lender to the Borrower, ~~the Collateral Manager, the Equityholder~~ any of its Affiliates or any ~~of their respective Affiliates and (y) no assignment~~ Disqualified Lender shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~permitted. (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Agents 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 to any Person other than a Competitor~~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~~ such Borrower, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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~~ (D) each Participant shall have agreed to be bound by this Section ~~12.06(c~~13.06(c), Section ~~12.06(e~~13.06(d), Section ~~12.09~~ 13.06(e) and Section ~~12.16~~13.17, and (E) such Participants are not Disqualified Lenders. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. ~~The Borrower agrees that~~ 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; provided that such~~ Section 13.06 and (B) no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.10, 2.11, or 13.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive~~under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater ~~payment~~ amount results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 ~~Xxxxxx~~ Lender as ~~non-fiduciary~~ 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 (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”)~~. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No~~ ; 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 ~~rights and~~ commitments, loans or its other obligations ~~hereunder~~under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. The entries in ~~the~~ a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~the~~ 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 ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section ~~12.02~~ 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances~~Note, if any, shall expressly so provide) and compliance with this Section ~~12.06~~13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent, the Collateral Administrator or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Individual Lender Maximum Funding Amounts. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility ~~Document and~~ Document, 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~~ 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 Amounts to any Person unless such Person is a Qualified ~~Purchaser~~Purchaser and a QIB. (f) Notwithstanding any other provision of this Section ~~12.06~~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

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

Assignability. (a) ~~Subject~~ The Borrowers shall not have the right to ~~the conditions set forth in~~ assign this ~~Section 12.06, each Lender may,~~ Credit Agreement or any interest therein except with the prior written consent of the ~~Borrower~~ 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 ~~consent not~~ Lender except to ~~be unreasonably withheld, conditioned or delayed~~ the extent such transfer would result in increased costs to the Borrowers. (~~it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)~~c) ~~and the Administrative Agent,~~ Each Lender may assign to ~~any Person~~ one or more banks, other financial institutions or investment funds all or a portion of its rights and obligations under this ~~Agreement~~ Credit Agreement, the Notes and the other Credit Documents; PROVIDED that, except in the case of an assignment to a Federal Reserve Bank (~~including all~~ which may be made without condition or ~~a portion of its Advances Outstanding or interests therein owned by it~~restriction), together with ratable portions of its 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ such assignment shall be ~~required if~~ for a fixed and not varying percentage of the ~~assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor);~~ assigning Lender's Loans, L/C Participations and Commitment, (ii) the ~~Borrower’s~~ Agent and, so long as no Event of Default has occurred and is continuing, the Funds Administrator shall consent to ~~any~~ such assignment ~~pursuant to this Section 12.06(a)~~ (which consents 104 shall not be required if 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 (aunreasonably withheld), ~~clause (b) or clause (h) of Section 6.01 shall have occurred and be continuing; and~~ (iii) ~~notwithstanding anything herein to the contrary,~~ for each ~~Lender may make an assignment to any Person (other than a Competitor) with notice to, but without the consent of~~such assignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ thereto shall execute and deliver to the ~~Administrative Agent~~ 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 ~~copy~~ processing and recordation fee of $5,000 and (iv) except for any assignment covering all or the remaining portion of an assigning Lender's rights and obligations under this Credit Agreement, 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 ~~Collateral Agent~~ Agent, from and after the date specified as the effective date in the Assignment and Assumption Agreement (the "ACCEPTANCE DATE"), (A) the assignee thereunder shall be a party hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption Agreement, such assignee shall have the rights and obligations of a Lender hereunder and (B) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption Agreement, relinquish its rights (other than any rights it may have pursuant to SECTION 11.8, 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 ~~Acceptance, to~~ Assumption Agreement covering all or the ~~Borrower)~~ remaining portion of 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 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 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent 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 's rights and obligations under this ~~Agreement to any Person other than a Competitor; provided that (A) such Lender’s obligations under this Agreement shall remain unchanged~~Credit Agreement, ~~(B)~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed cease to be ~~bound by this Section 12.06(c~~a party hereto), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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~~ By executing and delivering an Assignment and Assumption Agreement, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Assumption Agreement, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Credit Agreement or any other Credit Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, the Notes, or any other Credit Document; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower, any other Credit Parties or any Issuing Bank, the value of the Collateral, or the performance or observance by (A) any Borrower or any other Credit Parties of any of its obligations under this Credit Agreement or any other Credit Document, or (B) any Issuing Bank of any of its obligations under any Letter of Credit; (iii) such assignee confirms that it has received a copy of this Credit Agreement, together with copies of the Financial Statements referred to in SECTION 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption Agreement; (iv) such assignee will continue, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, to make its own credit decisions in taking or not taking action under this Credit Agreement; (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf of and ~~acting solely for~~ to exercise such powers under this ~~purpose~~ Credit Agreement and the other Credit Documents as are delegated to the ~~non-fiduciary agent~~ Agent by their terms, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the ~~Borrower,~~ obligations which by the terms of this Credit Agreement are required to be performed by it as a Lender. 105 (e) The Agent shall maintain at its address ~~specified~~ referred to in ~~Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders,~~ SECTION 11.5 a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and ~~Acceptance~~ Assumption Agreement delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of the Lenders and the ~~aggregate outstanding~~ Commitment of, and principal amount of the ~~Advances Outstanding 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, the Collateral Manager, the Agents, the Collateral~~ Funds Administrator, the ~~Custodian~~Borrowers, the ~~Securities Intermediary~~ Agent and the Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Credit Agreement. The Register and copies of each Assignment and Assumption shall be available for inspection by ~~the Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) ~~Notwithstanding~~ Upon its receipt of an Assignment and Assumption Agreement executed by an assigning Lender, together with the Note or Notes subject to such assignment, the Agent shall, if such Assignment and Assumption Agreement has been completed and is in substantially the form of EXHIBIT A hereto, (i) accept such Assignment and Assumption Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Funds Administrator. Within five (5) Business Days after its receipt of such notice, the Borrowers shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note or Notes to the order of the assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Assumption Agreement and, if the assigning Lender has retained a Commitment hereunder, a new Note or Notes to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall re-evidence the Indebtedness outstanding under the old Note or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the Closing Date and shall otherwise be in substantially the form of the Note or Notes subject to such assignments. (g) Each Lender may sell participations (without the consent of the Agent, any Borrower or any other ~~provision of this Section 12.06, any Lender may at any time pledge~~ Lender) to one or ~~grant a security interest~~ more parties in or to all or ~~any~~ a portion of its rights and obligations under this Credit Agreement (including all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); PROVIDED that (i) such Lender's obligations under this Credit Agreement (including its Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Credit Agreement, (iv) the Funds Administrator, the Borrowers, the Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Credit Agreement and such Notes and (v) such Lender shall not transfer, grant, assign or sell any participation under which the participant shall have rights to ~~payment~~ approve any amendment or waiver of this Credit Agreement except to the extent such amendment or waiver would (A) extend the final maturity date or the date for the payments of any installment of fees or principal or interest of any Loans or Letter of Credit reimbursement obligations in which such participant is participating; (B) reduce the amount of any installment of principal of the Loans or the amount of any drawing under any Letter of Credit in which such participant is participating; (C) except as otherwise expressly provided in this Credit Agreement, reduce the interest rate applicable to the Loans or the amount of any drawing under any Letter of Credit in which such participant is participating; or (D) except as otherwise expressly provided in this Credit Agreement, reduce any Fees payable 106 hereunder in which such participant participates. Each Lender selling or granting a participation, including a participation sold pursuant to SECTION 2.10, shall indemnify the Borrowers and ~~interest) under this Agreement to secure obligations~~ the Agent for any Taxes and Liabilities that either may sustain as a result of such Lender~~, including~~ 's failure to withhold and pay any ~~pledge or security interest granted~~ Taxes applicable to ~~a Federal Reserve 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

Samples: Credit Agreement (Wellman Inc)

Assignability. (a) ~~Subject~~ No Company 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 ~~conditions set forth~~ extent such transfer would result in ~~this Section 12.06, each~~ increased costs to Borrower. (c) Each Lender may, with the consent of Agent and, so long as no Event of Default is then continuing, with the consent of Borrower, which consent of Borrower ~~(such consent~~ shall not to be unreasonably withheld, ~~conditioned or delayed (it being understood that~~ but without the ~~Borrower’s failure to~~ consent ~~to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~of any other Lender, assign to ~~any Person~~ 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 Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such consent shall be deemed to have been granted by and the ~~Borrower if the Borrower shall not have objected in writing within seven (7) Business Days of receipt of any such request for consent~~Other Agreements; provided, ~~further, that:~~ that (i) ~~neither the Borrower’s nor the Administrative Agent’s consent to any~~ for each such assignment shall be required if the assignee is (A) a Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 ofassignment, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties ~~to each such assignment~~ thereto shall execute and deliver to Agent, for its acceptance and recording in the ~~Administrative Agent~~ Register (~~with~~ as defined below), an Assignment and Acceptance Agreement in the form attached hereto as Exhibit D (the "Assignment and Acceptance"), and a ~~copy~~ 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). 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 ~~Collateral Agent~~ 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~~Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to ~~the Borrower~~be a party hereto). (d) By executing and delivering 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 12.06(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder ~~shall be a party~~ 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~~Agreement and the Other Agreements or the execution, ~~and to the extent of the interest assigned by such assigning Lender~~legality, ~~have the rights and obligations of a Lender under this Agreement. Notwithstanding any other provision~~ validity, enforceability, genuineness, sufficiency or value of this ~~Section 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder~~ Agreement or any of ~~their respective Affiliates~~ the Other Agreements, (ii) such assigning Lender makes no representation or warranty and ~~(y)~~ assumes no ~~assignment shall be made~~ responsibility with respect to the financial condition of any ~~Defaulting Lender, a natural person~~ Company or any ~~Person that, upon becoming a Lender hereunder, would constitute~~ other Obligor or the performance or observance by any ~~of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder~~ Company or any ~~interest herein without the prior written consent~~ other Obligor of the Administrative Agent 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 its obligations under this Agreement ~~to any Person other than a Competitor; provided that~~ and the Other Agreements, (Aiii) such ~~Lender’s obligations under~~ assignee confirms that it has received a copy of this Agreement ~~shall remain unchanged~~and the Other Agreements, 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, (Biv) 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 ~~remain solely responsible to~~ deem appropriate at the ~~other parties hereto for the performance of such obligations~~time, ~~(C) the Borrower, the Agents, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall~~ continue to ~~deal solely and directly with such Lender~~ make its own credit decisions in ~~connection with such Lender’s rights and obligations~~ 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 (Dvi) ~~each Participant shall have agreed~~ such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be ~~bound~~ performed by ~~this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. Any agreement pursuant to which~~ it as a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant. (iie) ~~In the event that any Lender sells participations in any portion of its rights and obligations hereunder~~Agent shall, such Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address ~~specified~~ referred to in Section ~~12.02 or such other address as~~ 24 of the ~~Administrative Agent shall designate in writing to the Lenders,~~ Agreement a copy of ~~this Agreement, each signature page hereto,~~ each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register ~~(the “Register”)~~ for the recordation of the ~~names,~~ names and addresses ~~and wiring instructions~~ of ~~the~~ Lenders and the ~~aggregate outstanding~~ Revolving Loan Commitments of, and principal amount of the ~~Advances Outstanding 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~~each Company, ~~the Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agent and ~~the~~ Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder for all purposes of ~~the Facility Documents~~this Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by ~~the Borrower~~each Company, ~~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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (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. Within five (5) Business Days after its receipt of such notice, Borrower shall execute and deliver to Agent in exchange for the surrendered promissory note or notes, a new promissory note or notes to the order of the assignee in amounts equal to such assignee's commitments and outstanding Loans hereunder and, if the assigning Lender has retained a portion of the Loans, a new promissory note or notes to the order of the assigning Lender in an amount equal to the remaining commitments and outstanding loans hereunder of such assigning Lender under the terms of this Agreement. Such new promissory note or notes shall re-evidence the indebtedness outstanding under the old promissory note or notes and shall be in the aggregate principal amount of such surrendered promissory note or notes, shall be dated of even date herewith and shall otherwise be in substantially the form of the promissory note or notes subject to such assignment. (g) Each Lender may sell participations (without the consent of Agent, any Company 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 12.06~~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 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) each Company, 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 Borrower and Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan 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~~ possession regarding any ~~such pledgee or grantee for such Lender as a party hereto~~Company.

Appears in 1 contract

Samples: Loan and Security Agreement (Easy Gardener Products LTD)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (x) shall not be unreasonably withheld or delayed and (y) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~16.06(a) shall not be required if 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~~ is continuing (~~a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared been waived by the ~~Collateral Manager or any of its affiliates~~Lenders in accordance with Section 16.01). The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 16.03(g), 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 ~~12.06~~16.06, (xA) no assignment ~~may be made~~ by any Lender to the Borrower, the ~~Collateral Manager~~Parent, the ~~Equityholder~~ Collateral Manager or any of their respective Affiliates ~~and (y) no assignment~~ shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent permitted 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 to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.09 or 12.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 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. (e) 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) 750499896 22723957 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 Lender’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. (i) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name of all Participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register. The Participant Register shall be available for inspection by the Borrower to the extent necessary for the Borrower to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1 of the 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. (g) 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 Schedule 5 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each Assignment and Acceptance and Xxxxxx Xxxxxxx 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 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 may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register and in accordance with this Section 16.06. The Administrative Agent shall update and furnish to the Collateral Agent, the Collateral Administrator 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 Commitments. 750499896 22723957 (h) 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 or Lender Joinder Agreement) 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 Commitment to any Person unless such Person is a Qualified Purchaser and a QIB.

Appears in 1 contract

Samples: Credit Agreement (Main Street Capital CORP)

Assignability. (a) ~~Subject to the conditions set forth in this Section 12.06, each~~ Each Lender may, with the consent of the ~~Borrower (such consent not to be unreasonably withheld, conditioned or delayed (it being understood that~~ Administrative Agent and the Borrower~~’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent~~, assign to ~~any Person~~ 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 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 seven (7) Business Days of receipt of any such request for consent; provided, further, that: (i) ~~neither~~ each of the Borrower’s ~~nor~~ and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is ~~(A)~~ a ~~Lender or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as~~ Permitted Assignee with respect to such ~~assignee is not a Competitor);~~assignor; and (ii) the Borrower’s consent to any such assignment pursuant to this Section ~~12.06(a~~13.06(a) shall not be required if (x) a Default or an Event of Default shall have occurred (and ~~be continuing; provided that~~ not been waived by the Lenders 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 (a), clause (b~~accordance with Section 13.01) or ~~clause~~ (hy) ~~of Section 6.01 shall have occurred and be continuing; and (iii) notwithstanding anything herein to the contrary, each Lender may make an~~ such assignment to is required by any Person (other than a Competitor) with notice to, but without the consent of, the Borrower or the Administrative Agent if such Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Change in Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral ~~Agent and, in the case of an Assignment and Acceptance, to the Borrower~~Agent) an Assignment and Acceptance and the applicable tax forms required by ~~Sections 12.03(f~~Section 13.03(g), 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 ~~12.06~~13.06, ~~(x)~~ no assignment ~~may be made~~ by any Lender to the ~~Borrower, the Collateral Manager, the Equityholder~~ Borrower or any of ~~their respective~~ its Affiliates ~~and (y) no assignment~~ shall be ~~made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y)~~permitted. (ba) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the ~~Administrative Agent~~ Agents 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 to any Person other than a Competitor~~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~~ such Borrower, the ~~Agents, the Collateral Administrator, the Custodian and the Securities Intermediary~~ 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 (D) each Participant shall have agreed to be bound by this Section ~~12.06(c~~13.06(c), Section ~~12.06(e~~13.06(d), Section ~~12.09~~ 13.06(e) and Section ~~12.16~~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. ~~The Borrower agrees that~~ 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; provided that such~~ Section 13.06 and (B) no Participant shall ~~not~~ be entitled to ~~receive~~ any amount under Section 2.10, 2.11, or 13.03 which is greater ~~payment under Sections 2.09 or 12.03, with respect to any participation,~~ than ~~its participating~~ the amount the related Lender would have been entitled to ~~receive~~under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater ~~payment~~ amount results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.20 with respect to any Participant. (iii) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Xxxxxx as ~~non-fiduciary~~ 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 (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”)~~. An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). No~~ ; 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 ~~rights and~~ commitments, loans or its other obligations ~~hereunder~~under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~rights and obligations are~~ commitment, loan or other obligation is in registered form under Section 5f.103-1 1(c) of the United States Treasury Regulations. The entries in ~~the~~ a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~the~~ 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 ~~non-fiduciary~~ nonfiduciary agent of the Borrower, shall maintain at its address specified in Section ~~12.02~~ 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this ~~Agreement,~~ Agreement and each signature page ~~hereto,~~ hereto and each Assignment and Acceptance delivered to and accepted by ~~it,~~ it and a register (the “Register”) for the recordation of the ~~names,~~ names and addresses ~~and 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 ~~Collateral Manager, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary~~ Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender ~~and the owner of the amounts owing to it under the Facility Documents as reflected in the Register~~ hereunder -130- for all purposes of ~~the Facility Documents~~this Agreement. The Register shall be available for inspection by the ~~Borrower, the Collateral Manager, the Collateral Agent~~ 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 with respect to the Advances~~Note, if any, shall expressly so provide) and compliance with this Section ~~12.06~~13.06. The Administrative 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 Commitments. (ed) Notwithstanding anything to the contrary set forth herein or in any other Facility ~~Document and~~ Document, 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~~ 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 Commitment to any Person unless such Person is a Qualified ~~Purchaser~~Purchaser and a QIB. (fe) Notwithstanding any other provision of this Section ~~12.06~~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

Samples: Revolving Credit and Security Agreement (Blackstone Secured Lending Fund)

Assignability. This Agreement is a continuing obligation and shall (a) ~~Subject~~ be binding upon the Company and their respective successors, transferees and assigns and (b) inure to the ~~conditions set forth in this Section 12.06, each Lender may, with the consent~~ benefit of ~~the Borrower (such consent not to~~ and be unreasonably withheld, conditioned or delayed (it being understood that the Borrower’s failure to consent to an assignment to a Competitor shall not be deemed unreasonable)) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions of its Commitment); provided that such consent shall be deemed to have been granted enforceable 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~~Lender and its successors and assigns; provided, ~~further~~however, ~~that: (i) neither~~ that the ~~Borrower’s nor the Administrative Agent’s consent to any such assignment~~ Company shall ~~be required if the assignee is (A) a Lender~~ not assign all or any of its Affiliates or (B) managed by a Lender or any of its Affiliates (so long as such assignee is not a Competitor); (ii) the Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if 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 (a), clause (b) or clause (h) 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 Xxxxxx makes a reasonable determination that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law; provided that, the Administrative Agent shall not disclose any information to a Competitor after the Collateral Manager notifies the Administrative Agent that it has determined in good faith to be competitively sensitive, including without limitation, portfolio company financials, internal credit memos, investment committee memos and any proprietary analysis or similar information prepared by the Collateral Manager or any of its affiliates. The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent and, in the case of an Assignment and Acceptance, to the Borrower) 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 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 part of this Section 12.06, (x) no assignment may be made to the Borrower, the Collateral Manager, the Equityholder or any of their respective Affiliates and (y) no assignment shall be made to any Defaulting Lender, a natural person or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y). (b) The Borrower may not assign its rights or obligations hereunder or any interest herein Agreement without the prior written consent of the ~~Administrative Agent~~ Required Lenders. The Lender may, in accordance with applicable law and the ~~Lenders.~~ terms of the Bond Documents, from time to time, without the prior written consent of the Company, assign, sell or transfer in whole or in part, this Agreement, its interest in the Bonds and the Related Documents, or grant participating interests therein; provided the written consent of the Company shall be required for any assignment to an assignee that is not an Affiliate of the Lender (except (i) ~~Any Lender may~~as otherwise provided in the following sentence or (ii) if a Default has occurred and is continuing, ~~without~~ the consent of ~~(but with notice to)~~ the ~~Borrower, sell participations to Participants in all or a portion of~~ Company shall not be required); and provided further that any such Lender’s rights and obligations under this Agreement to any Person other than a Competitor; 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, the Collateral Administrator, the Custodian and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e), Section 12.09 and Section 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. The Borrower agrees that 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 under clause (a) of this Section; provided that such Participant participant shall not be entitled to receive any greater payment under ~~Sections 2.09 or 12.03~~Section 3.01, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after ~~the Participant~~ such participant acquired the applicable participation. ~~Each~~ The Lender ~~that sells a participation agrees~~may, ~~at the Borrowers’ request and expense, to use reasonable efforts to cooperate~~ in accordance with the Borrowers 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 Xxxxxx as non-fiduciary agent for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it applicable law and the ~~principal amount (and stated interest thereon)~~ terms of the ~~portion~~ Bond Documents, without the prior written consent of the ~~Advance which is the subject of the participation~~ Company (the “Participant Register”). An Advance may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note, if any, shall expressly so provide). 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 rights and obligations hereunderx) to any Person except to the extent necessary to establish that such rights and obligations are in registered form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in 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 non-fiduciary agent of the Borrower, shall maintain at its address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the “Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding principal amount of the 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 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 and the owner of the amounts owing to it under the Facility Documents as reflected in the Register for all purposes of the Facility Documents. The Register shall be available for inspection by the 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 with respect to the Advances, if any, shall expressly so provide) and compliance with this Section 12.06. (e) Notwithstanding anything to the contrary set forth herein or in any other Facility 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”). 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. (f) Notwithstanding any other provision of this Section 12.06, any Lender may at any time pledge or ~~grant~~ assign a security interest in all or any portion of its rights ~~(including rights to payment of principal and interest)~~ under this Agreement (including under the Bonds) to secure obligations of ~~such~~ the Lender, including any pledge or ~~security interest granted~~ assignment to secure obligations 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~~ assignment shall release ~~such~~ the Lender from any of its obligations hereunder or substitute any such pledgee or ~~grantee~~ assignee for ~~such~~ the Lender as a party hereto, and (y) assign, sell, transfer, or grant participation interests in, the interests of the Lender in and to the Bonds, this Agreement and the Related Documents where such assignment, sale, transfer or grant by such Lender is required by Governmental Authority. Each assignment shall be in a minimum amount of $1,000,000 and an assignment fee in the amount of $3,500 will be charged by the Lender with respect to each assignment unless waived by the Lender in its sole discretion.

Appears in 1 contract

Samples: Bond Purchase and Covenants Agreement (Madison Gas & Electric Co)

Common use of Assignability Clause in Contracts