Successors and Assigns; Assignments and Participations. (a) A Lender may at any time assign all or a portion of its rights and delegate all or a portion of its obligations under this Agreement and the other Loan Documents (including all its rights and obligations with respect to the Loan) to one or more Persons (a “Transferee”) without limitation or restriction. The Transferee and such Lender shall execute and deliver for acceptance and recording in the Register a Lender Addition Agreement, which shall be in form and substance reasonably acceptable to Agent in its sole discretion (“Lender Addition Agreement”). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Lender Addition Agreement, (i) the Transferee thereunder shall be a party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations as it would if it were a Lender hereunder, (ii) the assigning Lender shall be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof, as the case may be, to the extent that such obligations shall have been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of a Lender Addition Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto but, with respect to matters occurring before such assignment, shall nevertheless continue to be entitled to the benefits of Sections 12.4 and 12.7 hereof). Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the Transferee and that the Transferee shall be considered to be a “Lender” hereunder. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents or any of the Obligations, or any portion thereof, including Borrower’s rights, title, interests, remedies, powers and duties hereunder or thereunder. (b) Agent and each Lender may at any time sell participations in all or any part of its rights and obligations under this Agreement and the other Loan Documents (including all its rights and obligations with respect to the Loan) to one or more Persons (each, a “Participant”). In the event of any such sale by a Lender of a participation to a Participant, (i) such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Loan (and any Note evidencing such Loan) for all purposes under this Agreement and the other Loan Documents, (iv) Borrower and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents, and (v) such Participant shall be entitled to the benefits of amounts payable pursuant to Section 2.10 hereof to the same extent as if it were a Lender and acquired its interest by assignment; provided, however, that, a Participant shall not be entitled to receive any greater payment under Section 2.10 hereof than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. Any agreement pursuant to which a Lender shall sell any such participation shall provide that such Lender shall retain the sole right and responsibility to exercise such Lender’s rights and enforce Borrower’s obligations hereunder, including the right to consent to any amendment, supplement, modification or waiver of any provision of this Agreement or any of the other Loan Documents; provided, that such participation agreement may provide that such Lender will not agree, without the consent of the Participant, to any amendment, supplement, modification or waiver of: (A) any reduction in the principal amount, interest rate or fees payable with respect to any Loan in which such holder participates; (B) any extension of the termination date of this Agreement or the date fixed for any payment of principal, interest or fees payable with respect to any Loan in which such holder participates; and (C) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement or the other Loan Documents). Borrower hereby acknowledges and agrees that the Participant under each participation shall, solely for the purposes of Sections 12.4 and 12.7 hereof, be considered to be a “Lender” hereunder. (c) Agent shall maintain at its address referred to in Section 12.5 hereof a copy of each Lender Addition Agreement delivered to it and a written or electronic register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the portion of the Loan owing to, and the Notes evidencing the Loans owned by, each Lender from time to time. Notwithstanding anything in this Agreement to the contrary, each of Borrower and Agent shall treat each Person whose name is recorded in the Register as the owner of its relevant portion of the Loan, the Notes and the Commitment recorded therein for all purposes of this Agreement. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (d) Notwithstanding anything in this Agreement to the contrary, no assignment under Section 12.2(a) hereof of any rights or obligations under or in respect of the Loan or the Notes evidencing any portion of the Loan shall be effective unless and until Agent shall have recorded the assignment pursuant to Section 12.2(c) hereof. Upon its receipt of a Lender Addition Agreement executed by an assigning Agent and a Transferee, Agent shall (i) promptly accept Lender Addition Agreement and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give prompt notice of such acceptance and recordation to the assigning Lender and Borrower. On or prior to such effective date, the assigning Lender shall surrender any outstanding Notes held by it, all or a portion of which are being assigned, and Borrower, at their own expense, shall, upon the request of Agent by the assigning Lender or the Transferee, as applicable, execute and deliver to Agent, within five (5) Business Days of any request, new Notes to reflect the interest held by the assigning Lender and its Transferee. (e) Except as otherwise provided in this Section 12.2, Agent and each Lender shall not, as between Borrower and Agent, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of a Loan or other Obligations owed to Agent and the Lenders. Agent may furnish any information concerning Borrower in the possession of Agent from time to time to assignees and participants (including prospective assignees and participants), subject to confidentiality requirements hereunder. (f) Agent and each Lender may at any time create a security interest in all or any portion of its rights under this Agreement, including, without limitation, the Loan (or the portion thereof) owing to it and the Notes held by it and the other Loan Documents and Collateral. (g) Borrower agrees to use commercially reasonable best efforts to assist Agent and each Lender in assigning or selling participations in all or any part of the Loan made by any Lender to another Person identified by such Lender. (h) Notwithstanding anything in the Loan Documents to the contrary, (i) Agent and its Affiliates shall not be required to execute and deliver a Lender Addition Agreement in connection with any transaction involving its Affiliates or Lenders, (ii) no lender to or funding or financing source of Agent or its Affiliates shall be considered a Transferee, (iii) there shall be no limitation or restriction on Agent’s ability to assign or otherwise transfer any Loan Document to any such Affiliate or lender to or funding or financing source of Agent or its Affiliates, and (iv) there shall be no limitation or restriction on such Affiliates’ or lenders’ or financing or funding sources’ ability to assign or otherwise transfer any Loan Document, Loan, Note or Obligation (or any of its rights thereunder or interest therein); provided, however, Agent shall continue to be liable as a “Lender” under the Loan Documents unless such Affiliate or lender or funding or financing source executes a Lender Addition Agreement and thereby becomes a “Lender.” (i) The Loan Documents shall inure to the benefit of Agent, the Lenders, Transferee, Participant (to the extent expressly provided therein only) and all future holders of the Notes, the Obligations and/or any of the Collateral, and each of their respective successors and permitted assigns. Each Loan Document shall be binding upon the Persons that are parties thereto and their respective successors and assigns, and no such Person may assign, delegate or transfer any Loan Document or any of its rights or obligations thereunder without the prior written consent of Agent. No rights are intended to be created under any Loan Document for the benefit of any third party donee, creditor or incidental beneficiary of Borrower. Nothing contained in any Loan Document shall be construed as a delegation to Agent of any other Person’s duty of performance. BORROWER ACKNOWLEDGES AND AGREES THAT AGENT AT ANY TIME AND FROM TIME TO TIME MAY (I) DIVIDE AND REISSUE (WITHOUT SUBSTANTIVE CHANGES OTHER THAN THOSE RESULTING FROM SUCH DIVISION) THE NOTES, AND/OR (II) SELL, ASSIGN OR GRANT PARTICIPATING INTERESTS IN OR TRANSFER ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER ANY LOAN DOCUMENT, THE NOTE, THE OBLIGATIONS AND/OR THE COLLATERAL TO OTHER PERSONS, IN EACH CASE ON THE TERMS AND CONDITIONS PROVIDED HEREIN. Each Transferee and Participant shall have all of the rights and benefits with respect to the Obligations, Notes, Collateral and/or Loan Documents held by it as fully as if the original holder thereof; provided, that, notwithstanding anything to the contrary in any Loan Document, Borrower shall not be obligated to pay under this Agreement to any Transferee or Participant any sum in excess of the sum that it would have been obligated to pay to Agent had such transfer or participation not been effected. Agent may disclose to any Transferee or Participant all information, reports, financial statements, certificates and documents obtained under any provision of any Loan Document; provided, that Transferees and Participants shall be subject to the confidentiality provisions contained herein that are applicable to Agent.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) A All representations, covenants and other agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of their respective successors and assigns (including, without limitation, any subsequent holder of any Note), whether so expressed or not.
(b) Any Lender may may, pursuant to the provisions of this Section 8.8(b), assign, at any time assign or times, all or any portion, but if a portion partial assignment, in an amount at least equal to $5,000,000, of its rights and delegate all or a portion of its obligations under this Agreement and the other Loans, Loan Documents (including all its rights and obligations with respect to the Loan) to one and/or any Commitment hereunder or more Persons (a “Transferee”) without limitation of any portion, thereof or restriction. The Transferee and such Lender shall execute and deliver for acceptance and recording in the Register a Lender Addition Agreement, which shall be in form and substance reasonably acceptable to Agent in its sole discretion (“Lender Addition Agreement”). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Lender Addition Agreement, (i) the Transferee thereunder shall be a party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations as it would if it were a Lender hereunder, (ii) the assigning Lender shall be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof, as the case may be, to the extent that such obligations shall have been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of a Lender Addition Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto but, with respect to matters occurring before such assignment, shall nevertheless continue to be entitled to the benefits of Sections 12.4 and 12.7 hereof). Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the Transferee and that the Transferee shall be considered to be a “Lender” hereunder. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents or any of the Obligations, or any portion thereoftherein, including Borrower’s Lender's rights, title, interests, remedies, powers and or duties hereunder or thereunder.
under the other Loan Documents to any Person; provided that such assignment shall be to a Person acceptable to the Agent and, if no Event of Default has occurred and is continuing, such assignment shall be to a Person acceptable to Aerial; provided further, however, that Aerial shall be entitled to classify a prospective assignee as not acceptable only if Aerial in its reasonable judgment believes such assignment could be disadvantageous to Aerial. Any assignment of a Lender shall be evidenced by a writing in the form of Exhibit D hereto (b"Assignment Agreement"). The Agent shall give Aerial written notice ("Assignment Notice") of any proposed assignments which notice shall contain (i) the dollar amount to be assigned, (ii) the name of the proposed assignee, and (iii) the price which the proposed assignee is expected to pay for such assignment. Any proposed assignment shall be deemed to have been consented to by Aerial unless Aerial provides written notice to the Agent within five (5) Business Days of receipt of the applicable Assignment Notice that (i) it withholds its consent of such proposed assignment (such notice to contain a reasonable description of the reasons for Aerial's withholding consent therefor), or (ii) it will prepay in whole, or in part, the portion of the Loans or Commitment which the Agent proposed to assign or participate (such prepayment to occur not later than thirty (30) days after such notice to the Agent). On and each after the effective date of such assignment, such assignee, if not already a Lender, shall for all purposes be a Lender may at party to this Agreement and any time sell participations in other Loan Documents and shall have all or any part of its the rights and obligations of a Lender under the Loan Documents, to the same extent as if it were an original party hereto, and no further consent or action by Aerial, any other Lender or the Agent shall be required to release the transferor Lender with respect to the percentage of the Commitment and Loans assigned to such assignee. Upon the consummation of any assignment to an assignee pursuant to this Section 8.8(b), the assignor Lender, the assignee Lender, the Agent and Aerial shall make appropriate arrangements so that the assignee Lender shall receive all deliveries and notices provided for under this Agreement. The Agent shall maintain at its address referred to in Section 8.5 a copy of each Assignment Agreement for the recordation of the names and addresses of any Lender and the Commitment of and principal amount of the Loans owing to each Lender from time to time (the "Register"). Upon the effectiveness of any assignment permitted hereby, Aerial acknowledges and agrees that such assignment shall give rise to a direct obligation of Aerial to the Lender and any such Lender together with Nokia, to the extent Nokia maintains any share of the Loans or Commitment, shall be considered, collectively, to be the "Lenders" for all purposes under this Agreement and the other Loan Documents Documents.
(including all c) Any Lender may, in the ordinary course of its rights business and obligations in accordance with respect to the Loan) applicable law, at any time sell to one or more Persons banks or other entities not directly or indirectly in competition with either Loan Party (each"Participants") participating interests in any Loan owing to such Lender, any Note held by such Lender or any Commitment of such Lender or any other interest of such Lender under the Loan Documents on a “Participant”)pro rata or non-pro rata basis. In the event of any such sale by a Lender of a participation participating interests to a Participant, (i) such Lender’s 's obligations under this Agreement to the other parties to this Agreement Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations, (iii) such Lender shall remain the holder of any such Loan (and any Note evidencing such Loan) for all purposes under this Agreement and the other Loan Documents, (iv) Borrower such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements in connection therewith relating to such Participant, all amounts payable by Aerial under this Agreement shall be determined as if such Lender had not sold such participating interests, and Aerial and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan DocumentsDocuments except that, and (v) such Participant for purposes of Section 2.7 hereof, any Participants shall be entitled to the benefits of amounts payable pursuant to Section 2.10 hereof to the same extent rights as if it they were a Lender and acquired its interest by assignment; providedLenders, however, that, a provided that no Participant shall not be entitled to receive any greater payment under amount pursuant to Section 2.10 hereof 2.7 than the applicable such Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. Any agreement pursuant to which a Lender shall sell any such participation shall provide that such Lender shall retain the sole right and responsibility to exercise such Lender’s rights and enforce Borrower’s obligations hereunder, including the right to consent to any amendment, supplement, modification or waiver of any provision of this Agreement or any of the other Loan Documents; provided, that such participation agreement may provide that such Lender will not agree, without the consent of the Participant, to any amendment, supplement, modification or waiver of: (A) any reduction in the principal amount, interest rate or fees payable with respect to any Loan in which such holder participates; (B) any extension of the termination date of this Agreement or the date fixed for any payment of principal, interest or fees payable with respect to any Loan in which such holder participates; and (C) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement or the other Loan Documents). Borrower hereby acknowledges and agrees that the Participant under each participation shall, solely for the purposes of Sections 12.4 and 12.7 hereof, be considered to be a “Lender” hereunder.
(c) Agent shall maintain at its address referred to in Section 12.5 hereof a copy of each Lender Addition Agreement delivered to it and a written or electronic register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the portion of the Loan owing to, and the Notes evidencing the Loans owned by, each Lender from time to time. Notwithstanding anything in this Agreement to the contrary, each of Borrower and Agent shall treat each Person whose name is recorded in the Register as the owner of its relevant portion of the Loan, the Notes and the Commitment recorded therein for all purposes of this Agreement. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Notwithstanding anything in this Agreement to the contrary, no assignment under Section 12.2(a) hereof of any rights or obligations under or in respect of the Loan or the Notes evidencing any portion amount of the Loan shall be effective unless and until Agent shall have recorded the assignment pursuant to Section 12.2(c) hereof. Upon its receipt of a Lender Addition Agreement executed by an assigning Agent and a Transferee, Agent shall (i) promptly accept Lender Addition Agreement and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give prompt notice of such acceptance and recordation to the assigning Lender and Borrower. On or prior participation transferred to such effective date, the assigning Lender shall surrender any outstanding Notes held by it, all or a portion of which are being assigned, and Borrower, at their own expense, shall, upon the request of Agent by the assigning Lender or the Transferee, as applicable, execute and deliver to Agent, within five (5) Business Days of any request, new Notes to reflect the interest held by the assigning Lender and its TransfereeParticipant had no transfer occurred.
(e) Except as otherwise provided in this Section 12.2, Agent and each Lender shall not, as between Borrower and Agent, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of a Loan or other Obligations owed to Agent and the Lenders. Agent may furnish any information concerning Borrower in the possession of Agent from time to time to assignees and participants (including prospective assignees and participants), subject to confidentiality requirements hereunder.
(f) Agent and each Lender may at any time create a security interest in all or any portion of its rights under this Agreement, including, without limitation, the Loan (or the portion thereof) owing to it and the Notes held by it and the other Loan Documents and Collateral.
(g) Borrower agrees to use commercially reasonable best efforts to assist Agent and each Lender in assigning or selling participations in all or any part of the Loan made by any Lender to another Person identified by such Lender.
(h) Notwithstanding anything in the Loan Documents to the contrary, (i) Agent and its Affiliates shall not be required to execute and deliver a Lender Addition Agreement in connection with any transaction involving its Affiliates or Lenders, (ii) no lender to or funding or financing source of Agent or its Affiliates shall be considered a Transferee, (iii) there shall be no limitation or restriction on Agent’s ability to assign or otherwise transfer any Loan Document to any such Affiliate or lender to or funding or financing source of Agent or its Affiliates, and (iv) there shall be no limitation or restriction on such Affiliates’ or lenders’ or financing or funding sources’ ability to assign or otherwise transfer any Loan Document, Loan, Note or Obligation (or any of its rights thereunder or interest therein); provided, however, Agent shall continue to be liable as a “Lender” under the Loan Documents unless such Affiliate or lender or funding or financing source executes a Lender Addition Agreement and thereby becomes a “Lender.”
(i) The Loan Documents shall inure to the benefit of Agent, the Lenders, Transferee, Participant (to the extent expressly provided therein only) and all future holders of the Notes, the Obligations and/or any of the Collateral, and each of their respective successors and permitted assigns. Each Loan Document shall be binding upon the Persons that are parties thereto and their respective successors and assigns, and no such Person may assign, delegate or transfer any Loan Document or any of its rights or obligations thereunder without the prior written consent of Agent. No rights are intended to be created under any Loan Document for the benefit of any third party donee, creditor or incidental beneficiary of Borrower. Nothing contained in any Loan Document shall be construed as a delegation to Agent of any other Person’s duty of performance. BORROWER ACKNOWLEDGES AND AGREES THAT AGENT AT ANY TIME AND FROM TIME TO TIME MAY (I) DIVIDE AND REISSUE (WITHOUT SUBSTANTIVE CHANGES OTHER THAN THOSE RESULTING FROM SUCH DIVISION) THE NOTES, AND/OR (II) SELL, ASSIGN OR GRANT PARTICIPATING INTERESTS IN OR TRANSFER ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER ANY LOAN DOCUMENT, THE NOTE, THE OBLIGATIONS AND/OR THE COLLATERAL TO OTHER PERSONS, IN EACH CASE ON THE TERMS AND CONDITIONS PROVIDED HEREIN. Each Transferee and Participant shall have all of the rights and benefits with respect to the Obligations, Notes, Collateral and/or Loan Documents held by it as fully as if the original holder thereof; provided, that, notwithstanding anything to the contrary in any Loan Document, Borrower shall not be obligated to pay under this Agreement to any Transferee or Participant any sum in excess of the sum that it would have been obligated to pay to Agent had such transfer or participation not been effected. Agent may disclose to any Transferee or Participant all information, reports, financial statements, certificates and documents obtained under any provision of any Loan Document; provided, that Transferees and Participants shall be subject to the confidentiality provisions contained herein that are applicable to Agent.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) A Subject to Section 12.2(b) hereof, each Lender Party may at any time assign all or a any portion of its rights and delegate all or a any portion of its obligations under this Agreement and the other any Loan Documents (including all its rights and obligations with respect to the Loan) Document to one or more Persons Eligible Assignees in accordance with the terms hereof (each, a “Transferee”) without limitation or restriction. The Transferee and such Lender shall execute and deliver for acceptance and recording in with the Register a Lender Addition Agreement, which shall be in form and substance reasonably acceptable to prior written consent of Agent in its sole discretion (“Lender Addition Agreement”). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Lender Addition Agreement, (i) the Transferee thereunder shall be a party hereto and, to the extent so long as no Event of Default exists, Borrowers (which consent of Borrowers shall not be unreasonably withheld, delayed or conditioned); provided in such Lender Addition Agreement, have the same rights, benefits and obligations as it would if it were a Lender hereunder, (ii) the assigning Lender shall be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof, as the case may be, to the extent that such obligations shall have been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of a Lender Addition Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto but, with respect to matters occurring before such assignment, shall nevertheless continue to be entitled to the benefits of Sections 12.4 and 12.7 hereof). Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the Transferee and that the Transferee shall be considered to be a “Lender” hereunder. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents or any of the Obligations, or any portion thereof, including Borrower’s rights, title, interests, remedies, powers and duties hereunder or thereunder.
(b) Agent and each Lender may at any time sell participations in all or any part that an Event of its rights and obligations under this Agreement and the other Loan Documents (including all its rights and obligations with respect to the Loan) to one or more Persons (eachDefault exists, a “Participant”). In the event of any such sale by a Lender of a participation to a Participant, (i) such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Loan (and any Note evidencing such Loan) for all purposes under this Agreement and the other Loan Documents, (iv) Borrower and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents, and (v) such Participant shall be entitled to the benefits of amounts payable pursuant to Section 2.10 hereof to the same extent as if it were a Lender and acquired its interest by assignment; provided, however, that, a Participant assignments shall not be entitled restricted to receive any greater payment under Section 2.10 hereof than the applicable Eligible Assignees. Each Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. Any agreement pursuant to which a Lender shall sell any such participation shall provide that such Lender shall retain the sole right and responsibility to exercise such Lender’s rights and enforce Borrower’s obligations hereunder, including the right to consent to any amendment, supplement, modification or waiver of any provision of this Agreement or any of the other Loan Documents; provided, that such participation agreement may provide that such Lender will not agree, without the consent of the Participant, to any amendment, supplement, modification or waiver of: (A) any reduction in the principal amount, interest rate or fees payable with respect to any Loan in which such holder participates; (B) any extension of the termination date of this Agreement or the date fixed for any payment of principal, interest or fees payable with respect to any Loan in which such holder participates; and (C) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement or the other Loan Documents). Borrower hereby acknowledges and agrees that the Participant under each participation shall, solely for the purposes of Sections 12.4 and 12.7 hereof, be considered to be a “Lender” hereunder.
(c) Agent shall maintain at its address referred to in Section 12.5 hereof a copy of each Lender Addition Agreement delivered to it and a written or electronic register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the portion of the Loan owing to, and the Notes evidencing the Loans owned by, each Lender from time to time. Notwithstanding anything in this Agreement to the contrary, each of Borrower and Agent shall treat each Person whose name is recorded in the Register as the owner of its relevant portion of the Loan, the Notes and the Commitment recorded therein for all purposes of this Agreement. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Notwithstanding anything in this Agreement to the contrary, no assignment under Section 12.2(a) hereof of any rights or obligations under or in respect of the Loan or the Notes evidencing any portion of the Loan shall be effective unless and until Agent shall have recorded the assignment pursuant to Section 12.2(c) hereof. Upon its receipt of a Lender Addition Agreement executed by an assigning Agent and a Transferee, Agent shall (i) promptly accept Lender Addition Agreement and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give prompt notice of such acceptance and recordation to the assigning Lender and Borrower. On or prior to such effective date, the assigning Lender shall surrender any outstanding Notes held by it, all or a portion of which are being assigned, and Borrower, at their own expense, shall, upon the request of Agent by the assigning Lender or the Transferee, as applicable, execute and deliver to Agent, within five (5) Business Days of any request, new Notes to reflect the interest held by the assigning Lender and its Transferee.
(e) Except as otherwise provided in this Section 12.2, Agent and each Lender shall not, as between Borrower and Agent, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of a Loan or other Obligations owed to Agent and the Lenders. Agent Party may furnish any information concerning Borrower the Credit Parties in the possession of Agent that Lender Party from time to time to assignees and participants (including prospective assignees and participants), subject to the confidentiality requirements provisions hereunder.
(fi) Any Transfer hereunder shall be effective only upon satisfaction of the following conditions: (A) execution and delivery by the Transferee, the assigning Lender and Agent of an original Lender Addition Agreement and any documents required thereunder, (B) Agent shall have accepted such Lender Addition Agreement and recorded in the Register the names and addresses, Commitment, principal amount of the Loans owing, and Notes, if any, evidencing such transfer, and (C) receipt by Agent from such Transferee of a processing fee in the amount of $3,500. The parties hereto hereby agree that upon the effectiveness of each such Transfer, the Transferee shall become a Lender Party hereunder and the assigning Lender shall be relieved of its obligations hereunder in accordance with such Lender Addition Agreement. Within a reasonable amount of time after the effectiveness of any Transfer, the assigning Lender shall surrender any outstanding applicable Notes held by it, and Borrowers, at their own expense, shall promptly (and in any event within five (5) Business Days thereof) execute and deliver to Agent, new Notes to reflect the interest held by the assigning Lender and its Transferee. Agent shall maintain a copy of each Lender may at any time create a security interest in all or any portion of its rights under this Agreement, including, without limitation, the Loan (or the portion thereof) owing Addition Agreement delivered to it and the Notes held Register, which shall be available for inspection by it and the other Loan Documents and Collateralany party hereto at any reasonable time upon reasonable prior notice to Agent.
(g) Borrower agrees to use commercially reasonable best efforts to assist Agent and each Lender in assigning or selling participations in all or any part of the Loan made by any Lender to another Person identified by such Lender.
(hii) Notwithstanding anything in the Loan Documents to the contraryDocuments, (iX) Agent and its Affiliates no CapitalSource Entity shall not be required to execute and deliver a Lender Addition Agreement comply with Section 12.2(b)(i) in connection with any transaction involving any other CapitalSource Entity or any of its Affiliates or Lenders, (ii) no lender to their lenders or funding or financing source sources, and none of Agent or its Affiliates the foregoing shall be considered a Transferee, and (iiiY) there shall be no limitation or restriction on Agent’s (I) the ability of any CapitalSource Entity to assign or otherwise transfer any Loan Document Document, Commitment or Obligation to any other CapitalSource Entity or any lender or financing or funding source or (II) any such Affiliate or lender to lender’s or funding or financing source of Agent or its Affiliates, and (iv) there shall be no limitation or restriction on such Affiliates’ or lenders’ or financing or funding sources’ source’s ability to assign or otherwise transfer any Loan Document, Loan, Note Commitment or Obligation (or any of its rights thereunder or interest therein)Obligation; provided, however, Agent that CapitalSource shall continue to be liable as a “Lender” under the Loan Documents unless such Affiliate or lender or funding or financing source executes a Lender Addition Agreement other Person complies with the provisions of Section 12.2(b)(i) and thereby becomes a “Lender.”
(c) Each Lender Party may sell participations in all or any part of its rights and obligations under the Loan Documents to one or more Persons (each, a “Participant”). Upon any such sale, (i) The Loan Documents shall inure to the benefit of Agent, the Lenders, Transferee, Participant (to the extent expressly provided therein only) and all future holders of the Notes, the Obligations and/or any of the Collateral, and such Lender’s obligations under each of their respective successors and permitted assigns. Each Loan Document shall be binding upon the Persons that are parties thereto and their respective successors and assignsremain unchanged, and no such Person may assign, delegate or transfer any Loan Document or any of its rights or obligations thereunder without the prior written consent of Agent. No rights are intended to be created under any Loan Document Lender shall remain solely responsible for the benefit performance thereof, such Lender shall remain the holder of any third party donee, creditor or incidental beneficiary of Borrower. Nothing contained such Loan and all parties hereto shall continue to deal solely and directly with such Lender in any Loan Document shall be construed as a delegation to Agent of any other Person’s duty of performance. BORROWER ACKNOWLEDGES AND AGREES THAT AGENT AT ANY TIME AND FROM TIME TO TIME MAY (I) DIVIDE AND REISSUE (WITHOUT SUBSTANTIVE CHANGES OTHER THAN THOSE RESULTING FROM SUCH DIVISION) THE NOTES, AND/OR (II) SELL, ASSIGN OR GRANT PARTICIPATING INTERESTS IN OR TRANSFER ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER ANY LOAN DOCUMENT, THE NOTE, THE OBLIGATIONS AND/OR THE COLLATERAL TO OTHER PERSONS, IN EACH CASE ON THE TERMS AND CONDITIONS PROVIDED HEREIN. Each Transferee and Participant shall have all of connection with the rights and benefits with respect to the Obligations, Notes, Collateral and/or Loan Documents held by it as fully as if the original holder thereof; provided, that, notwithstanding anything to the contrary in any Loan Document, Borrower shall not be obligated to pay under this Agreement to any Transferee or Participant any sum in excess of the sum that it would have been obligated to pay to Agent had such transfer or participation not been effected. Agent may disclose to any Transferee or Participant all information, reports, financial statements, certificates and documents obtained under any provision of any Loan Document; provided, that Transferees and Participants shall be subject to the confidentiality provisions contained herein that are applicable to Agent.Loan
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Successors and Assigns; Assignments and Participations. (a) A Subject to Section 12.2(b) hereof, each Lender Party may at any time assign all or a any portion of its rights and delegate all or a any portion of its obligations under this Agreement and the other any Loan Documents (including all its rights and obligations with respect to the Loan) Document to one or more Persons Eligible Assignees in accordance with the terms hereof (each, a “Transferee”) without limitation with the prior written consent of Agent and, so long as no Event of Default exists, Borrowers (which consent of Borrowers shall not be unreasonably withheld, delayed or restrictionconditioned); provided that at any time that an Event of Default exists, such assignments shall not be restricted to Eligible Assignees. The Transferee Each Lender Party may furnish any information concerning the Credit Parties in the possession of that Lender Party from time to time to assignees and participants (including prospective assignees and participants), subject to the confidentiality provisions hereunder.
(i) Any Transfer hereunder shall be effective only upon satisfaction of the following conditions: (A) execution and delivery by the Transferee, the assigning Lender and Agent of an original Lender Addition Agreement and any documents required thereunder, (B) Agent shall have accepted such Lender shall execute Addition Agreement and deliver for acceptance and recording recorded in the Register the names and addresses, Commitment, principal amount of the Loans owing, and Notes, if any, evidencing such transfer, and (C) receipt by Agent from such Transferee of a processing fee in the amount of $3,500. The parties hereto hereby agree that upon the effectiveness of each such Transfer, the Transferee shall become a Lender Addition Agreement, which shall be in form Party hereunder and substance reasonably acceptable to Agent in its sole discretion (“Lender Addition Agreement”). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Lender Addition Agreement, (i) the Transferee thereunder shall be a party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations as it would if it were a Lender hereunder, (ii) the assigning Lender shall be relieved of its obligations hereunder in accordance with respect to its Commitment or assigned portion thereof, as the case may be, to the extent that such obligations shall have been expressly assumed by the Transferee pursuant to such Lender Addition Agreement Agreement. Within a reasonable amount of time after the effectiveness of any Transfer, the assigning Lender shall surrender any outstanding applicable Notes held by it, and Borrowers, at their own expense, shall promptly (andand in any event within five (5) Business Days thereof) execute and deliver to Agent, in new Notes to reflect the case interest held by the assigning Lender and its Transferee. Agent shall maintain a copy of a each Lender Addition Agreement covering all or delivered to it and the remaining portion of an assigning Lender’s rights and obligations under this AgreementRegister, such assigning Lender which shall cease to be a available for inspection by any party hereto butat any reasonable time upon reasonable prior notice to Agent.
(ii) Notwithstanding anything in the Loan Documents, (X) no CapitalSource Entity shall be required to comply with respect Section 12.2(b)(i) in connection with any transaction involving any other CapitalSource Entity or any of its or their lenders or funding or financing sources, and none of the foregoing shall be considered a Transferee, and (Y) there shall be no limitation or restriction on (I) the ability of any CapitalSource Entity to matters occurring before assign or otherwise transfer any Loan Document, Commitment or Obligation to any other CapitalSource Entity or any lender or financing or funding source or (II) any such assignmentlender’s or funding or financing source’s ability to assign or otherwise transfer any Loan Document, Commitment or Obligation; provided, however, that CapitalSource shall nevertheless continue to be entitled to the benefits of Sections 12.4 and 12.7 hereof). Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the Transferee and that the Transferee shall be considered to be liable as a “Lender” hereunder. Borrower may not sell, assign or transfer any interest in this Agreement, any of under the other Loan Documents or any unless such other Person complies with the provisions of the Obligations, or any portion thereof, including Borrower’s rights, title, interests, remedies, powers Section 12.2(b)(i) and duties hereunder or thereunderthereby becomes a “Lender.”
(bc) Agent and each Each Lender Party may at any time sell participations in all or any part of its rights and obligations under this Agreement and the other Loan Documents (including all its rights and obligations with respect to the Loan) to one or more Persons (each, a “Participant”). In the event of Upon any such sale by a Lender of a participation to a Participantsale, (i) such Lender’s obligations under this Agreement to the other parties to this Agreement each Loan Document shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Loan (and any Note evidencing such Loan) for all purposes under this Agreement and the other Loan Documents, (iv) Borrower and Agent parties hereto shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents, and (v) such Participant shall be entitled to the benefits of amounts payable pursuant to Section 2.10 hereof to the same extent as if it were a Lender and acquired its interest by assignment; provided, however, that, a Participant shall not be entitled to receive any greater payment under Section 2.10 hereof than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. Any agreement pursuant to which a any Lender shall sell any such participation shall provide that such Lender shall retain the sole right and responsibility to exercise such Lender’s rights and enforce Borrowereach Credit Party’s obligations hereunder, including the right to consent to any amendment, supplement, modification or waiver of any provision of this Agreement or any of the other Loan Documents; provided, that such participation agreement may provide that such Lender will not agree, without the consent of the Participant, to any amendment, supplement, modification or waiver of: (A) any reduction in the principal amount, interest rate or fees payable with respect to any Loan in which such holder participates; (B) any extension of the termination date of this Agreement or the date fixed for any payment of principal, interest or fees payable with respect to any Loan in which such holder participates; Document. The Credit Parties hereby acknowledge and (C) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement or the other Loan Documents). Borrower hereby acknowledges and agrees agree that the Participant under each participation shall, solely for the purposes of Sections 10.3, 11.3, 12.4 and 12.7 hereof, be considered to be a “Lender” hereunder.
(c) Agent shall maintain at its address referred to in Section 12.5 hereof a copy of each Lender Addition Agreement delivered to it and a written or electronic register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the portion of the Loan owing to, and the Notes evidencing the Loans owned by, each Lender from time to time. Notwithstanding anything in this Agreement to the contrary, each of Borrower and Agent shall treat each Person whose name is recorded in the Register as the owner of its relevant portion of the Loan, the Notes and the Commitment recorded therein for all purposes of this Agreement. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Notwithstanding anything any other provision set forth in this Agreement to the contraryany Loan Document, no assignment under Section 12.2(a) hereof of any rights or obligations under or in respect of the Loan or the Notes evidencing any portion of the Loan shall be effective unless and until Agent shall have recorded the assignment pursuant to Section 12.2(c) hereof. Upon its receipt of a Lender Addition Agreement executed by an assigning Agent and a Transferee, Agent shall (i) promptly accept Lender Addition Agreement and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give prompt notice of such acceptance and recordation to the assigning Lender and Borrower. On or prior to such effective date, the assigning Lender shall surrender any outstanding Notes held by it, all or a portion of which are being assigned, and Borrower, at their own expense, shall, upon the request of Agent by the assigning Lender or the Transferee, as applicable, execute and deliver to Agent, within five (5) Business Days of any request, new Notes to reflect the interest held by the assigning Lender and its Transferee.
(e) Except as otherwise provided in this Section 12.2, Agent and each Lender shall not, as between Borrower and Agent, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of a Loan or other Obligations owed to Agent and the Lenders. Agent may furnish any information concerning Borrower in the possession of Agent from time to time to assignees and participants (including prospective assignees and participants), subject to confidentiality requirements hereunder.
(f) Agent and each Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement, including, without limitation, the any Loan (or the portion thereof) owing to it and the Notes held by it and the other Loan Documents and Collateral.
(g) Borrower Document. Each Credit Party agrees to use commercially reasonable best efforts to assist Agent and each any Lender Party in assigning making assignments or selling participations in all or any part of the Loan made by any Lender to another Person identified by such LenderLoan.
(h) Notwithstanding anything in the Loan Documents to the contrary, (i) Agent and its Affiliates shall not be required to execute and deliver a Lender Addition Agreement in connection with any transaction involving its Affiliates or Lenders, (ii) no lender to or funding or financing source of Agent or its Affiliates shall be considered a Transferee, (iii) there shall be no limitation or restriction on Agent’s ability to assign or otherwise transfer any Loan Document to any such Affiliate or lender to or funding or financing source of Agent or its Affiliates, and (iv) there shall be no limitation or restriction on such Affiliates’ or lenders’ or financing or funding sources’ ability to assign or otherwise transfer any Loan Document, Loan, Note or Obligation (or any of its rights thereunder or interest therein); provided, however, Agent shall continue to be liable as a “Lender” under the Loan Documents unless such Affiliate or lender or funding or financing source executes a Lender Addition Agreement and thereby becomes a “Lender.”
(ie) The Loan Documents shall (i) inure to the benefit of Agent, the Lenderseach Lender Party, Transferee, Participant (only to the extent expressly provided therein onlyherein) and all future holders of the NotesLoans, the Obligations and/or any of the Collateral, and each of their respective successors and permitted assigns. Each Loan Document shall be binding upon the Persons that are parties thereto and their respective successors and assigns, and no such Person (ii) be binding upon all the Credit Parties. No Credit Party may assignsell, delegate assign or transfer any Loan Document or any of its rights interests or obligations thereunder without the prior written consent of AgentObligations under any Loan Document. No rights are intended to be created under any Loan Document for the benefit of any third party donee, creditor or incidental beneficiary of Borrowerany Credit Party. Nothing contained in any Loan Document shall be construed as a delegation to Agent any Lender Party of any other Person’s duty of performance. BORROWER ACKNOWLEDGES AND AGREES THAT AGENT AT ANY TIME AND FROM TIME TO TIME MAY (I) DIVIDE AND REISSUE (WITHOUT SUBSTANTIVE CHANGES OTHER THAN THOSE RESULTING FROM SUCH DIVISION) THE NOTES, AND/OR (II) SELL, ASSIGN OR GRANT PARTICIPATING INTERESTS IN OR TRANSFER ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER ANY LOAN DOCUMENT, THE NOTE, THE OBLIGATIONS AND/OR THE COLLATERAL TO OTHER PERSONS, IN EACH CASE ON THE TERMS AND CONDITIONS PROVIDED HEREIN. Each Transferee and Participant shall have all of the rights and benefits with respect to the Obligations, Notes, Collateral and/or Loan Documents held by it as fully as if the original holder thereof; provided, that, notwithstanding anything to the contrary in any Loan Document, Borrower shall not be obligated to pay under this Agreement to any Transferee or Participant any sum in excess of the sum that it would have been obligated to pay to Agent had such transfer or participation not been effected. Agent may disclose to any Transferee or Participant all information, reports, financial statements, certificates and documents obtained under any provision of any Loan Document; provided, that Transferees and Participants shall be subject to the confidentiality provisions contained herein that are applicable to Agent.
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Successors and Assigns; Assignments and Participations. (a) A Subject to Section 12.2(h), each Lender may may, at any time and from time to time, assign all or a any portion of its rights and delegate all or a portion of its obligations under this Agreement and the other Loan Documents in a minimum amount of $1,000,000 (or 100% of any remaining Commitment less than $1,000,000) (including all of its rights and obligations with respect to the Loan) to one or more Persons Eligible Assignees (each, a “Transferee”) without limitation with the prior written consent of Agent and, to the extent no Default or restriction. The Event of Default shall have occurred and be continuing, with the prior written consent of Borrower (which consent of Borrower shall not be unreasonably withheld, delayed or conditions, or required if any Default or Event of Default exists); provided, that such Transferee and such assigning Lender shall execute and deliver to Agent for acceptance and recording in the Register Register, a Lender Addition Agreement, which shall be in form and substance reasonably acceptable to Agent in its sole discretion (“Lender Addition Agreement”)Permitted Discretion. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Lender Addition Agreement, (i) the Transferee thereunder shall be a party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations as it would if it were of a Lender hereunder, (ii) the assigning Lender shall be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof, as the case may be, to the extent that such obligations shall have been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of a Lender Addition Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto but, with respect to matters occurring before such assignment, shall nevertheless continue to be entitled to the benefits of Sections 12.4 and 12.7 hereof). Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the Transferee and that the Transferee shall be considered to be a “Lender” hereunder. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents or any of the Obligations, or any portion thereof, including Borrower’s rights, title, interests, remedies, powers and duties hereunder or thereunder.
(b) Agent and each Lender may at any time sell participations in all or any part of its rights and obligations under this Agreement and the other Loan Documents (including all its rights and obligations with respect to the Loan) to one or more Persons (each, a “Participant”). In the event of any such sale by a Lender of a participation to a Participant, (i) such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Loan (and any Note evidencing such Loan) for all purposes under this Agreement and the other Loan Documents, (iv) Borrower and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents, and (v) such Participant shall be entitled to the benefits of amounts payable pursuant to Section 2.10 hereof to the same extent as if it were a Lender and acquired its interest by assignment; provided, however, that, a Participant shall not be entitled to receive any greater payment under Section 2.10 hereof than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. Any agreement pursuant to which a Lender shall sell any such participation shall provide that such Lender shall retain the sole right and responsibility to exercise such Lender’s rights and enforce Borrower’s obligations hereunder, including the right to consent to any amendment, supplement, modification or waiver of any provision of this Agreement or any of the other Loan Documents; provided, that such participation agreement may provide that such Lender will not agree, without the consent of the Participant, to any amendment, supplement, modification or waiver of: (A) any reduction in the principal amount, interest rate or fees payable with respect to any Loan in which such holder participates; (B) any extension of the termination date of this Agreement or the date fixed for any payment of principal, interest or fees payable with respect to any Loan in which such holder participates; and (C) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement or the other Loan Documents). Borrower hereby acknowledges and agrees that the Participant under each participation shall, solely for the purposes of Sections 12.4 and 12.7 hereof, be considered to be a “Lender” hereunder.
(c) Agent shall maintain at its address referred to in Section 12.5 hereof a copy of each Lender Addition Agreement delivered to it and a written or electronic register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the portion of the Loan owing to, and the Notes evidencing the Loans owned by, each Lender from time to time. Notwithstanding anything in this Agreement to the contrary, each of Borrower and Agent shall treat each Person whose name is recorded in the Register as the owner of its relevant portion of the Loan, the Notes and the Commitment recorded therein for all purposes of this Agreement. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Notwithstanding anything in this Agreement to the contrary, no assignment under Section 12.2(a) hereof of any rights or obligations under or in respect of the Loan or the Notes evidencing any portion of the Loan shall be effective unless and until Agent shall have recorded the assignment pursuant to Section 12.2(c) hereof. Upon its receipt of a Lender Addition Agreement executed by an assigning Agent and a Transferee, Agent shall (i) promptly accept Lender Addition Agreement and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give prompt notice of such acceptance and recordation to the assigning Lender and Borrower. On or prior to such effective date, the assigning Lender shall surrender any outstanding Notes held by it, all or a portion of which are being assigned, and Borrower, at their own expense, shall, upon the request of Agent by the assigning Lender or the Transferee, as applicable, execute and deliver to Agent, within five (5) Business Days of any request, new Notes to reflect the interest held by the assigning Lender and its Transferee.
(e) Except as otherwise provided in this Section 12.2, Agent and each Lender shall not, as between Borrower and Agent, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of a Loan or other Obligations owed to Agent and the Lenders. Agent may furnish any information concerning Borrower in the possession of Agent from time to time to assignees and participants (including prospective assignees and participants), subject to confidentiality requirements hereunder.
(f) Agent and each Lender may at any time create a security interest in all or any portion of its rights under this Agreement, including, without limitation, the Loan (or the portion thereof) owing to it and the Notes held by it and the other Loan Documents and Collateral.
(g) Borrower agrees to use commercially reasonable best efforts to assist Agent and each Lender in assigning or selling participations in all or any part of the Loan made by any Lender to another Person identified by such Lender.
(h) Notwithstanding anything in the Loan Documents to the contrary, (i) Agent and its Affiliates shall not be required to execute and deliver a Lender Addition Agreement in connection with any transaction involving its Affiliates or Lenders, (ii) no lender to or funding or financing source of Agent or its Affiliates shall be considered a Transferee, (iii) there shall be no limitation or restriction on Agent’s ability to assign or otherwise transfer any Loan Document to any such Affiliate or lender to or funding or financing source of Agent or its Affiliates, and (iv) there shall be no limitation or restriction on such Affiliates’ or lenders’ or financing or funding sources’ ability to assign or otherwise transfer any Loan Document, Loan, Note or Obligation (or any of its rights thereunder or interest therein); provided, however, Agent shall continue to be liable as a “Lender” under the Loan Documents unless such Affiliate or lender or funding or financing source executes a Lender Addition Agreement and thereby becomes a “Lender.”
(i) The Loan Documents shall inure to the benefit of Agent, the Lenders, Transferee, Participant (to the extent expressly provided therein only) and all future holders of the Notes, the Obligations and/or any of the Collateral, and each of their respective successors and permitted assigns. Each Loan Document shall be binding upon the Persons that are parties thereto and their respective successors and assigns, and no such Person may assign, delegate or transfer any Loan Document or any of its rights or obligations thereunder without the prior written consent of Agent. No rights are intended to be created under any Loan Document for the benefit of any third party donee, creditor or incidental beneficiary of Borrower. Nothing contained in any Loan Document shall be construed as a delegation to Agent of any other Person’s duty of performance. BORROWER ACKNOWLEDGES AND AGREES THAT AGENT AT ANY TIME AND FROM TIME TO TIME MAY (I) DIVIDE AND REISSUE (WITHOUT SUBSTANTIVE CHANGES OTHER THAN THOSE RESULTING FROM SUCH DIVISION) THE NOTES, AND/OR (II) SELL, ASSIGN OR GRANT PARTICIPATING INTERESTS IN OR TRANSFER ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER ANY LOAN DOCUMENT, THE NOTE, THE OBLIGATIONS AND/OR THE COLLATERAL TO OTHER PERSONS, IN EACH CASE ON THE TERMS AND CONDITIONS PROVIDED HEREIN. Each Transferee and Participant shall have all of the rights and benefits with respect to the Obligations, Notes, Collateral and/or Loan Documents held by it as fully as if the original holder thereof; provided, that, notwithstanding anything to the contrary in any Loan Document, Borrower shall not be obligated to pay under this Agreement to any Transferee or Participant any sum in excess of the sum that it would have been obligated to pay to Agent had such transfer or participation not been effected. Agent may disclose to any Transferee or Participant all information, reports, financial statements, certificates and documents obtained under any provision of any Loan Document; provided, that Transferees and Participants shall be subject to the confidentiality provisions contained herein that are applicable to Agent.
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