Assignment and Participation. It is understood and agreed that each Bank shall have the right to assign at any time all or a portion of its Commitment Percentage and interests in the risk relating to the Loans, outstanding Letters of Credit and its Commitment hereunder in an amount equal to or greater than (unless otherwise agreed to by the Borrower and the Administrative Agent) $5,000,000 (or, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to such Bank’s Commitment; provided that prior to any Commitment reductions pursuant to §2.3.1, such Bank’s Commitment was at least $5,000,000), to additional banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) with the prior written approval of the Administrative Agent, the Swing Line Bank and each Issuing Bank and, so long as no Event of Default has occurred and is continuing, the consent of the Borrower (provided that (i) the Borrower’s consent shall not be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof), which approvals shall not be unreasonably withheld. Any Bank may at any time, and from time to time, assign to any branch, lending office, or Bank Affiliate all or any part of its rights and obligations under the Loan Documents by notice to the Administrative Agent and the Borrower. It is further agreed that each bank or other financial institution which executes and delivers to the Administrative Agent and the Borrower hereunder an Assignment and Assumption substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent (an “Assignment and Assumption”) together with an assignment fee in the amount of $3,500 payable by the assigning Bank to the Administrative Agent, shall, on the date specified in such Assignment and Assumption, become a party to this Agreement and the other Loan Documents for all purposes of this Agreement and the other Loan Documents, and its portion of the Commitment, the Loans and Letters of Credit shall be as set forth in such Assignment and Assumption; provided, that the Administrative Agent may, in its sole discretion, elect to waive such assignment fee. The Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations under this Agreement and the other Loan Documents. Upon the execution and delivery of such Assignment and Assumption (a) to the extent applicable, the Borrower shall issue Notes (and replacement Notes) or the Administrative Agent shall make appropriate entries on the applicable loan account(s) to reflect such assignment of Loan(s); and (b) this Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, financial institution or Bank Affiliate as a party hereto and (ii) the status and rights of the Banks hereunder. Each Bank shall also have the right to grant participations to one or more banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the Loans and outstanding Letters of Credit. The documents evidencing any such participation shall limit such participating bank’s, financial institution’s or Bank Affiliate’s, voting rights with respect to this Agreement to the matters set forth in §15.9(b)(i) – (v); and each such participant shall be entitled to the benefit of §5.5 hereof to the extent of its participation, subject to the limitations set forth therein. Notwithstanding the foregoing, no assignment or participation shall (a) be made to the Borrower or any Affiliate or (b) operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,000, except as a result of reductions in the Total Commitment pursuant to §2.3 hereof. Anything contained in this §20 to the contrary notwithstanding, any Bank may at any time pledge all or any portion of its interest and rights under this Agreement (including all or any portion of its Notes) to any of the twelve Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341. No such pledge or the enforcement thereof shall release the pledgor Bank from its obligations hereunder or under any of the other Loan Documents. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 hereof.
Appears in 1 contract
Assignment and Participation. It is understood and agreed that each Bank shall have the right to assign at any time all or a portion of its Commitment Percentage and interests in the risk relating to the Loans, outstanding Letters of Credit and its Commitment hereunder in an amount equal to or greater than (unless otherwise agreed to by the Borrower and the Administrative Agent) $5,000,000 (or, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to such Bank’s Commitment; provided that prior to any Commitment reductions pursuant to §2.3.1, such Bank’s Commitment was at least $5,000,000), ) to additional banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) with the prior written approval of the Administrative Agent, the Swing Line Bank Agent and each Issuing Bank and, so long as no Event of Default has occurred and is continuing, the consent of the Borrower (provided that (i) the Borrower’s consent shall not be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereofFund), which approvals shall not be unreasonably withheld. Any Bank may at any time, and from time to time, assign to any branch, lending office, or Bank Affiliate all or any part of its rights and obligations under the Loan Documents by notice to the Administrative Agent and the Borrower. It is further agreed that each bank or other financial institution which executes and delivers to the Administrative Agent and the Borrower hereunder an Assignment and Assumption Acceptance substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent D hereto (an “Assignment and AssumptionAcceptance”) together with an assignment fee in the amount of $3,500 payable by the assigning Bank to the Administrative Agent, shall, on the date specified in such Assignment and AssumptionAcceptance, become a party to this Agreement and the other Loan Documents for all purposes of this Agreement and the other Loan Documents, and its portion of the Commitment, the Loans and Letters of Credit shall be as set forth in such Assignment and Assumption; provided, that the Administrative Agent may, in its sole discretion, elect to waive such assignment feeAcceptance. The Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations under this Agreement and the other Loan Documents. Upon the execution and delivery of such Assignment and Assumption Acceptance (a) to the extent applicable, the Borrower shall issue Notes (and replacement Notes) or the Administrative Agent shall make appropriate entries on the applicable loan account(s) to reflect such assignment of Loan(s); and (b) this Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, financial institution or Bank Affiliate as a party hereto and (ii) the status and rights of the Banks hereunder. Each Bank shall also have the right to grant participations to one or more banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the Loans and outstanding Letters of Credit. The documents evidencing any such participation shall limit such participating bank’s, financial institution’s or Bank Affiliate’s, voting rights with respect to this Agreement to the matters set forth in §15.9(b)(i) – (v); and each such participant shall be entitled to the benefit of §5.5 hereof to the extent of its participation, subject to the limitations set forth therein. Notwithstanding the foregoing, no assignment or participation shall (a) be made to the Borrower or any Affiliate or (b) operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,000, except as a result of reductions in the Total Commitment pursuant to §2.3 hereof. Anything contained in this §20 to the contrary notwithstanding, any Bank may at any time pledge all or any portion of its interest and rights under this Agreement (including all or any portion of its Notes) to any of the twelve Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341. No such pledge or the enforcement thereof shall release the pledgor Bank from its obligations hereunder or under any of the other Loan Documents. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 hereof.
Appears in 1 contract
Assignment and Participation. It is understood and agreed that each Bank shall have the right to assign at any time all or a portion of its Commitment Percentage and interests in the risk relating to the Loans, outstanding Letters of Credit Credit, and its Commitment hereunder in an amount equal to or greater than $5,000,000 (which assignment shall be of an equal percentage of the Commitment, the Loans and outstanding Letters of Credit unless otherwise agreed to by the Borrower and the Administrative Agent) $5,000,000 (or, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to such Bank’s Commitment; provided that prior to any Commitment reductions pursuant to §2.3.1, such Bank’s Commitment was at least $5,000,000), to additional banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) with the prior written approval of the Administrative Agent, the Swing Line Bank and each Issuing Bank Agent and, so long as if no Default or Event of Default has occurred and is continuingexists, the consent of the Borrower (provided that (i) the Borrower’s consent shall not be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof)Borrowers, which approvals shall not be unreasonably withheld. Any Bank may at any time, and from time to time, assign to any branch, lending office, or affiliate or such Bank Affiliate all or any part of its rights and obligations under the Loan Documents by notice to the Administrative Agent and the Borrower. It is further agreed that each bank or other financial institution which executes and delivers to the Administrative Agent and the Borrower Borrowers hereunder an Assignment and Assumption Acceptance substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent (an “Assignment and Assumption”) hereto together with an assignment fee in the amount of $3,500 payable by the assigning Bank to the Administrative Agent, shall, on the date specified in such Assignment and AssumptionAcceptance, become a party to this Agreement and the other Loan Documents for all purposes of this Agreement and the other Loan Documents, and its portion of the Commitment, the Loans and Letters of Credit shall be as set forth in such Assignment and Assumption; provided, that the Administrative Agent may, in its sole discretion, elect to waive such assignment feeAcceptance. The Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations under this Agreement and the other Loan DocumentsAgreement. Upon the execution and delivery of such Assignment and Assumption Acceptance, (a) the Borrowers shall issue to the bank or other financial institution a Note in the amount of such bank's or other financial institution's Commitment dated the date of the assignment or such other date as may be specified by the Agent and otherwise completed in substantially the form of Exhibit A and to the extent applicableany assigning Bank has retained a portion of its obligations hereunder, an appropriate replacement Note to the assigning Bank reflecting its assignment; (b) the Agent shall distribute to the Borrowers, the Borrower shall issue Notes (Banks and replacement Notes) such bank or the Administrative Agent shall make appropriate entries on the applicable loan account(s) to reflect financial institution a schedule reflecting such assignment of Loan(s)changes; and (bc) this Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, bank or financial institution or Bank Affiliate as a party hereto and (ii) the status and rights of the Banks hereunder. Each Bank shall also have the right to grant participations to one or more banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the Loans and outstanding Letters of Credit. The documents evidencing any such participation shall limit such participating bank’s, bank or financial institution’s or Bank Affiliate’s, institutions voting rights with respect to this Agreement to the matters set forth in §15.9(b)(i) – (v); and each such participant shall be entitled to 14.8 which require the benefit vote of §5.5 hereof to the extent of its participation, subject to the limitations set forth thereinall Banks. Notwithstanding the foregoing, no assignment or participation shall (a) be made to the Borrower or any Affiliate or (b) operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,000, except as a result of such amount may be reduced upon reductions in the Total Commitment pursuant to §2.3 2.2 hereof. Anything contained in this §20 19 to the contrary notwithstanding, any Bank may at any time pledge all or any portion of its interest and rights under this Agreement (including all or any portion of its Notes) to any of the twelve Federal Reserve Banks Lenders organized under §4 of the Federal Reserve Act, 12 U.S.C. §341. No such pledge or the enforcement thereof shall release the pledgor Bank from its obligations hereunder or under any of the other Loan Documents. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 hereof.
Appears in 1 contract
Samples: Revolving Credit Agreement (Eastern Environmental Services Inc)
Assignment and Participation. It is understood and agreed that each Bank shall have the right to assign or participate at any time all or a portion of its Commitment Percentage and interests in the risk relating to the Loans, any Loans and outstanding Letters of Credit and its Commitment hereunder in an amount equal to or greater than (unless otherwise agreed to by the Borrower and the Administrative Agent) $5,000,000 (orwhich assignment shall be of an equal percentage of the Commitment, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to such Bank’s Commitment; provided that prior to any Commitment reductions pursuant to §2.3.1, such Bank’s Commitment was at least $5,000,000), the Loans and outstanding Letters of Credit) to additional banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) so long as the Agent will be the Agent hereunder and with the prior written approval consent of the Administrative Agent, the Swing Line Bank and each Issuing Bank Agent and, so long as no unless a Default or an Event of Default has shall have occurred and is be continuing, the consent of the Borrower (provided that (i) the Borrower’s consent shall not be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof)Borrowers, which approvals shall not be unreasonably withheld. Any Bank may at any time; and further, and from time to time, assign to any branch, lending office, or Bank Affiliate all or any part of its rights and obligations under the Loan Documents by notice to the Administrative Agent and the Borrower. It is further agreed that each bank or other financial institution which executes and delivers to the Administrative Agent Banks and the Borrower Borrowers hereunder an Assignment a counterpart joinder in form and Assumption substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent (an “Assignment and Assumption”) together with an assignment fee in the amount of $3,500 payable by the assigning Bank substance satisfactory to the Administrative Agent, Banks and such bank or financial institution shall, on the date specified in such Assignment and Assumptioncounterpart joinder, become a party to this Agreement and the other Loan Documents for all purposes of this Agreement and the other Loan DocumentsAgreement, and its portion of the Commitment, the Loans and Letters of Credit Commitment shall be as set forth in such Assignment and Assumption; provided, that the Administrative Agent may, in its sole discretion, elect to waive such assignment fee. The Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations under this Agreement and the other Loan Documentscounterpart joinder. Upon the execution and delivery of such Assignment counterpart joinder and Assumption payment by the assigning bank of an assignment fee in the amount of $3,500 to the Agent, (a) to the extent applicable, the Borrower Borrowers shall issue Notes (to such bank or other financial institution a Note in the amount of such bank's or other financial institution's Commitment dated the Closing Date or such other date as may be specified by the Agent and replacement Notes) or otherwise completed in substantially the Administrative Agent shall make appropriate entries on the applicable loan account(s) to reflect such assignment form of Loan(s)Exhibit A hereto; and (b) the Agent shall distribute to the Borrowers, the Banks and such bank or financial institution a schedule reflecting such changes; (c) this Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, such bank or financial institution or Bank Affiliate as a party hereto and (ii) the status and rights of the Banks and Agent hereunder. Each Bank ; and (d) the Borrowers shall also have take such action as the right Agent may reasonably request to grant participations perfect any security interests in favor of the Banks, including any bank or financial institution which becomes a party to one or more banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the Loans and outstanding Letters of Creditthis Agreement. The documents evidencing any such participation shall limit may provide that, except with the consent of the bank or financial institution that is a party thereto, such participating bank’s, financial institution’s Bank will not consent to (a) the reduction in or Bank Affiliate’s, voting rights forgiveness of the stated principal of or rate of interest on or Commitment Fee with respect to this Agreement the portion of any Loan subject to such participation or assignment, (b) the extension or postponement of any stated date fixed for payment of principal or interest or Commitment Fee with respect to the matters set forth in §15.9(b)(i) – (v); and each such participant shall be entitled to the benefit portion of §5.5 hereof to the extent of its participation, any Loan subject to such participation or assignment, or (c) the limitations set forth thereinwaiver or reduction of any right to indemnification of such Bank hereunder. Notwithstanding the foregoing, no assignment syndication or participation shall (a) be made to the Borrower or any Affiliate or (b) operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,000, except as a result of reductions in the Total Commitment pursuant to §2.3 hereof. Anything contained in this §20 to the contrary notwithstanding, any Bank may at any time pledge all or any portion of its interest and rights contemplated under this Agreement (including all or any portion of its Notes) to any of the twelve Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341. No such pledge or the enforcement thereof shall release the pledgor Bank from its obligations hereunder or under any of the other Loan Documents. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 hereofss.2.2(c).
Appears in 1 contract
Assignment and Participation. It is understood and agreed that each Bank Each Lender shall have the right to assign at assign, transfer, sell, negotiate, pledge or otherwise hypothecate this Agreement and any time all or a portion of its Commitment Percentage rights and interests in security hereunder and under the risk relating to the Loans, outstanding Letters of Credit and its Commitment hereunder in an amount equal to or greater than (unless otherwise agreed to by the Borrower and the Administrative Agent) $5,000,000 (or, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to such Bank’s Commitment; provided that prior other Loan Documents to any Commitment reductions pursuant to §2.3.1, such Bank’s Commitment was at least $5,000,000), to additional banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) Eligible Assignee with the prior written approval consent of the Administrative Agent and with the prior written consent of Borrower, which consents by the Agent and the Borrower shall not be unreasonably withheld, conditioned or delayed (provided that, in the case of the Borrower, such consent shall not be required if a Default or Event of Default shall have occurred and be continuing and provided, further, such consent shall not be required from either the Agent or the Borrower in connection with any assignment as to which (a) the assignee is an existing Lender (other than a Defaulting Lender) or (b) an Affiliate or a Related Fund of the assigning Lender)); provided, however, that (i) the parties to each such assignment shall execute and deliver to Agent, for its approval and acceptance, an Assignment and Assumption in form and substance satisfactory to the Swing Line Bank Agent and substantially in the form set forth in Exhibit B attached hereto, (ii) each Issuing Bank such assignment shall be of a constant, and not a varying, percentage of the assigning Lender’s rights and obligations under this Agreement, (iii) unless the Agent and, so long as no Event of Default has occurred and is continuingexists, Borrower otherwise consent, the consent aggregate amount of the Borrower Commitment of the assigning Lender being assigned pursuant to each such assignment shall in no event be less than One Million Dollars ($1,000,000.00), provided, however, that such minimum amount shall not apply if either (x) the assignee is an Affiliate or Related Fund of the Assigning Lender or (y) the Lender is assigning its entire remaining interest in the Loan, (iv) the Agent shall receive from the assigning Lender a processing fee of Three Thousand Five Hundred Dollars ($3,500.00), provided, however, that such fee shall not apply if the assignee is an Affiliate or Related Fund of the Assigning Lender, and (v) if the assignment is less than the assigning Lender’s entire interest in the Loan, the assigning Lender must retain at least a One Million Dollar ($1,000,000.00) interest in the Loan, provided that such minimum shall not apply if the assignee is an Affiliate or Related Fund of the assigning Lender. The Agent may designate any Eligible Assignee accepting an assignment of a specified portion of the Loans to be a Co-Agent, an “Arranger” or similar title, but such designation shall not confer on such Assignee the rights or duties of the Agent. Upon such execution, delivery, approval and acceptance, and upon the effective date specified in the applicable Assignment and Assumption, (ia) the Borrower’s consent shall not be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the Borrower Eligible Assignee thereunder shall be deemed to have consented to any such assignment unless it shall object thereto by written notice a party hereto and, to the Administrative Agent within ten (10) Business Days after having received notice thereof), which approvals shall not be unreasonably withheld. Any Bank may at any time, and from time to time, assign to any branch, lending office, or Bank Affiliate all or any part of its extent that rights and obligations under the Loan Documents by notice hereunder have been assigned to the Administrative Agent and the Borrower. It is further agreed that each bank or other financial institution which executes and delivers it pursuant to the Administrative Agent and the Borrower hereunder an Assignment and Assumption substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent (an “Assignment and Assumption”) together with an assignment fee in the amount of $3,500 payable by the assigning Bank to the Administrative Agent, shall, on the date specified in such Assignment and Assumption, become have the rights and obligations of a party to this Agreement Lender hereunder and the other Loan Documents for all purposes of this Agreement and under the other Loan Documents, and its portion Borrower hereby agrees that all of the Commitment, rights and remedies of Lenders in connection with the Loans and Letters of Credit interest so assigned shall be enforceable against Borrower by such Eligible Assignee with the same force and effect and to the same extent as set forth in the same would have been enforceable but for such Assignment assignment, and Assumption; provided, that (b) the Administrative Agent may, in its sole discretion, elect to waive such assignment fee. The Bank assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations under this Agreement hereunder and the other Loan Documents. Upon the execution and delivery of such Assignment and Assumption (a) to the extent applicable, the Borrower shall issue Notes (and replacement Notes) or the Administrative Agent shall make appropriate entries on the applicable loan account(s) to reflect such assignment of Loan(s); and (b) this Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, financial institution or Bank Affiliate as a party hereto and (ii) the status and rights of the Banks hereunder. Each Bank shall also have the right to grant participations to one or more banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the Loans and outstanding Letters of Credit. The documents evidencing any such participation shall limit such participating bank’s, financial institution’s or Bank Affiliate’s, voting rights with respect to this Agreement to the matters set forth in §15.9(b)(i) – (v); and each such participant shall be entitled to the benefit of §5.5 hereof to the extent of its participation, subject to the limitations set forth therein. Notwithstanding the foregoing, no assignment or participation shall (a) be made to the Borrower or any Affiliate or (b) operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,000, except as a result of reductions in the Total Commitment pursuant to §2.3 hereof. Anything contained in this §20 to the contrary notwithstanding, any Bank may at any time pledge all or any portion of its interest and rights under this Agreement (including all or any portion of its Notes) to any of the twelve Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341. No such pledge or the enforcement thereof shall release the pledgor Bank from its obligations hereunder or under any of the other Loan Documents. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 hereofthereunder thereafter accruing.
Appears in 1 contract
Assignment and Participation. It is understood and agreed that each Bank Each Lender shall have the right to assign at assign, transfer, sell, negotiate, pledge or otherwise hypothecate this Agreement and any time all or a portion of its Commitment Percentage rights and interests in security hereunder and under the risk relating to the Loans, outstanding Letters of Credit and its Commitment hereunder in an amount equal to or greater than (unless otherwise agreed to by the Borrower and the Administrative Agent) $5,000,000 (or, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to such Bank’s Commitment; provided that prior other Loan Documents to any Commitment reductions pursuant to §2.3.1, such Bank’s Commitment was at least $5,000,000), to additional banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) Eligible Assignee with the prior written approval consent of the Administrative Agent and with the prior written consent of Borrower, which consents by the Agent and the Borrower shall not be unreasonably withheld, conditioned or delayed (provided that, in the case of the Borrower, such consent shall not be required if a Default or Event of Default shall have occurred and be continuing and provided, further, such consent shall not be required from either the Agent or the Borrower in connection with any assignment as to which (a) the assignee is an existing Lender (other than a Defaulting Lender) or (b) an Affiliate or a Related Fund of the assigning Lender)); provided, however, that (i) the parties to each such assignment shall execute and deliver to Agent, for its approval and acceptance, an Assignment and Assumption in form and substance satisfactory to the Swing Line Bank Agent and substantially in the form set forth in Exhibit E attached hereto, (ii) each Issuing Bank such assignment shall be of a constant, and not a varying, percentage of the assigning Lender’s rights and obligations under this Agreement, (iii) unless the Agent and, so long as no Event of Default has occurred and is continuingexists, Borrower otherwise consent, the consent aggregate amount of the Borrower Commitment of the assigning Lender being assigned pursuant to each such assignment shall in no event be less than One Million Dollars ($1,000,000.00), provided, however, that such minimum amount shall not apply if either (x) the assignee is an Affiliate or Related Fund of the Assigning Lender or (y) the Lender is assigning its entire remaining interest in the Loan, (iv) the Agent shall receive from the assigning Lender a processing fee of Three Thousand Five Hundred Dollars ($3,500.00), provided, however, that such fee shall not apply if the assignee is an Affiliate or Related Fund of the Assigning Lender, and (v) if the assignment is less than the assigning Lender’s entire interest in the Loan, the assigning Lender must retain at least a One Million Dollar ($1,000,000.00) interest in the Loan, provided that such minimum shall not apply if the assignee is an Affiliate or Related Fund of the assigning Lender. The Agent may designate any Eligible Assignee accepting an assignment of a specified portion of the Loan to be a Co-Agent, an “Arranger” or similar title, but such designation shall not confer on such Assignee the rights or duties of the Agent. Upon such execution, delivery, approval and acceptance, and upon the effective date specified in the applicable Assignment and Assumption, (ia) the Borrower’s consent shall not be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the Borrower Eligible Assignee thereunder shall be deemed to have consented to any such assignment unless it shall object thereto by written notice a party hereto and, to the Administrative Agent within ten (10) Business Days after having received notice thereof), which approvals shall not be unreasonably withheld. Any Bank may at any time, and from time to time, assign to any branch, lending office, or Bank Affiliate all or any part of its extent that rights and obligations under the Loan Documents by notice hereunder have been assigned to the Administrative Agent and the Borrower. It is further agreed that each bank or other financial institution which executes and delivers it pursuant to the Administrative Agent and the Borrower hereunder an Assignment and Assumption substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent (an “Assignment and Assumption”) together with an assignment fee in the amount of $3,500 payable by the assigning Bank to the Administrative Agent, shall, on the date specified in such Assignment and Assumption, become have the rights and obligations of a party to this Agreement Lender hereunder and the other Loan Documents for all purposes of this Agreement and under the other Loan Documents, and its portion Borrower hereby agrees that all of the Commitment, rights and remedies of Lenders in connection with the Loans and Letters of Credit interest so assigned shall be enforceable against Borrower by such Eligible Assignee with the same force and effect and to the same extent as set forth in the same would have been enforceable but for such Assignment assignment, and Assumption; provided, that (b) the Administrative Agent may, in its sole discretion, elect to waive such assignment fee. The Bank assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations under this Agreement hereunder and the other Loan Documents. Upon the execution and delivery of such Assignment and Assumption (a) to the extent applicable, the Borrower shall issue Notes (and replacement Notes) or the Administrative Agent shall make appropriate entries on the applicable loan account(s) to reflect such assignment of Loan(s); and (b) this Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, financial institution or Bank Affiliate as a party hereto and (ii) the status and rights of the Banks hereunder. Each Bank shall also have the right to grant participations to one or more banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the Loans and outstanding Letters of Credit. The documents evidencing any such participation shall limit such participating bank’s, financial institution’s or Bank Affiliate’s, voting rights with respect to this Agreement to the matters set forth in §15.9(b)(i) – (v); and each such participant shall be entitled to the benefit of §5.5 hereof to the extent of its participation, subject to the limitations set forth thereinthereunder thereafter accruing. Notwithstanding the foregoing, no assignment or participation shall (a) be made to the Borrower or any Affiliate or (b) operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,000, except as a result of reductions in the Total Commitment pursuant to §2.3 hereof. Anything anything contained in this §20 Section 13.22 to the contrary notwithstandingcontrary, any Bank may prior to the occurrence of an Event of Default, (x) KeyBank National Association shall at any time pledge all or any portion of its interest and rights under this Agreement times hold not less than twenty-five percent (including all or any portion of its Notes25%) to any of the twelve Federal Reserve Banks organized under §4 Lenders’ interest in the Loan and (y) KeyBank National Association’s interest in the Loan shall at all times equal or exceed the interest of the Federal Reserve Act, 12 U.S.C. §341. No such pledge or the enforcement thereof shall release the pledgor Bank from its obligations hereunder or under any of the each other Loan Documents. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 hereofLender.
Appears in 1 contract
Samples: Loan Agreement (First Union Real Estate Equity & Mortgage Investments)
Assignment and Participation. It is understood and agreed that each Bank shall have the right to assign at any time all or a portion of its Commitment Percentage and interests in the risk relating to the Loans, outstanding Letters of Credit and its Commitment hereunder in an amount equal to or greater than (unless otherwise agreed to by the Borrower and the Administrative Agent) $5,000,000 (or, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to such Bank’s Commitment; provided that prior to any Commitment reductions pursuant to §2.3.1, such Bank’s Commitment was at least $5,000,000), to additional banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) with the prior written approval of the Administrative Agent, the Swing Line Bank and each Issuing Bank and, so long as no Event of Default has occurred and is continuing, the consent of the Borrower (provided that (i) the Borrower’s consent shall not be required in the case of an assignment to by a Bank to any other Bank, any Bank Affiliate of any Bank or to an any Approved Fund of any Bank and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof), which approvals shall not be unreasonably withheld. Any Bank may at any time, and from time to time, assign to any branch, lending office, or Bank Affiliate all or any part of its rights and obligations under the Loan Documents by notice to the Administrative Agent and the Borrower. It is further agreed that each bank or other financial institution which executes and delivers to the Administrative Agent and the Borrower hereunder an Assignment and Assumption substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent (an “Assignment and Assumption”) together with an assignment fee in the amount of $3,500 payable by the assigning Bank to the Administrative Agent, shall, on the date specified in such Assignment and Assumption, become a party to this Agreement and the other Loan Documents for all purposes of this Agreement and the other Loan Documents, and its portion of the Commitment, the Loans and Letters of Credit shall be as set forth in such Assignment and Assumption; provided, that the Administrative Agent may, in its sole discretion, elect to waive such assignment fee. The Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations under this Agreement and the other Loan Documents; provided that no assignment by a Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s having been a Defaulting Bank. In connection with any assignment of rights and obligations of any Defaulting Bank 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 subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Syndicated Loans previously requested but not funded by the Defaulting Bank, 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 Bank to the Administrative Agent, the Issuing Banks or any Bank hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Syndicated Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Commitment Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Bank hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Bank for all purposes of this Agreement until such compliance occurs. Upon the execution and delivery of such Assignment and Assumption (a) to the extent applicable, the Borrower shall issue Notes (and replacement Notes) or the Administrative Agent shall make appropriate entries on the applicable loan account(s) to reflect such assignment of Loan(s); and (b) this Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, financial institution or Bank Affiliate as a party hereto and (ii) the status and rights of the Banks hereunder. The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Banks, and the Commitment Percentages of, and principal amounts (and stated interest) of the Loans owing to, each Bank pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Banks shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Bank, at any reasonable time and from time to time upon reasonable prior notice. Each Bank shall also have the right to grant participations to one or more banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the Loans and outstanding Letters of Credit. The documents evidencing any such participation shall limit such participating bank’s, financial institution’s or Bank Affiliate’s, voting rights with respect to this Agreement to the matters set forth in §15.9(b)(i) – (v) and §15.9(b)(vi); and each such participant shall be entitled to the benefit of §5.5 hereof to the extent of its participation, subject to the limitations set forth therein. Each Bank that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under §5f.103-1(c) of the United States Treasury Regulations. Notwithstanding the foregoing, no assignment or participation shall (a) be made to the Borrower or any Affiliate of its affiliates, a Defaulting Bank or any of its Subsidiaries or a natural person or (b) operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,000, except as a result of reductions in the Total Commitment pursuant to §2.3 hereof. Anything contained in this §20 to the contrary notwithstanding, any Bank may at any time pledge or assign a security interest in all or any portion of its interest and rights under this Agreement (including all or any portion of its Notes) to secure obligations of such Bank, including any of the twelve pledge or assignment to secure obligations to a Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341. No Bank; provided that no such pledge or the enforcement thereof assignment shall release the pledgor such Bank from any of its obligations hereunder or under any of the other Loan DocumentsDocuments or substitute any such pledgee or assignee for such Bank as a party hereto or thereto. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 hereof. Notwithstanding anything to the contrary contained herein, if at any time a Bank that is an Issuing Bank or the Swing Line Bank assigns all of its Commitment and Syndicated Loans pursuant to this §20, such Bank may, (i) upon 45 days’ notice to the Borrower and the Banks, resign as an Issuing Bank and/or (ii) upon 45 days’ notice to the Borrower, resign as the Swing Line Bank. In the event of any such resignation as Issuing Bank or Swing Line Bank, the Borrower shall be entitled to appoint from among the Banks a successor Issuing Bank or Swing Line Bank hereunder; provided, however, that (x) no failure by the Borrower to appoint any such successor shall affect the resignation of the Bank that has elected to resign as Issuing Bank or Swing Line Bank, as the case may be, and (y) any such appointment of a successor Issuing Bank or Swing Line Bank must be acceptable to the Bank appointed to act in such capacity. If a Bank resigns as Issuing Bank, it shall retain the rights, powers, privileges and duties of an Issuing Bank hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Bank and all Reimbursement Obligations with respect thereto (including the right to require the Banks to make Base Rate Syndicated Loans pursuant to §3.2(a) or fund Letter of Credit Participations pursuant to §3.1(c)). If a Bank resigns as the Swing Line Bank, it shall retain all the rights of the Swing Line Bank provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation (including the right to require the Banks to make Base Rate Syndicated Loans or fund risk participations in outstanding Swing Line Loans pursuant to §2.11). Upon the appointment of a successor Issuing Bank and/or Swing Line Bank in accordance with the foregoing, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank or Swing Line Bank, as the case may be, and (b) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit issued by the resigning Issuing Bank, if any, that are outstanding at the time such resignation occurs or make other arrangements satisfactory to the resigning Issuing Bank to effectively assume the obligations of such resigning Issuing Bank with respect to such Letters of Credit.
Appears in 1 contract
Assignment and Participation. It is understood and agreed that each Bank shall have the right to assign at any time all or a portion of its Commitment Percentage Line Percentage, and interests in the risk relating to the Loans, outstanding Letters of Credit and its Commitment Loans hereunder in an amount equal to or greater than the lesser of (unless otherwise agreed to by the Borrower and the Administrative Agenta) $5,000,000 or (or, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to b) such Bank’s Commitment; provided that prior to any 's entire Commitment reductions pursuant to §2.3.1, such Bank’s Commitment was at least $5,000,000), to additional banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) with the prior written approval of the Administrative Agent, the Swing Line Bank and each Issuing Bank and, so long as no Event of Default has occurred and is continuing, the consent of the Borrower (provided that (i) the Borrower’s consent shall not be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof), which approvals shall not be unreasonably withheld. Any Bank may at any time, and from time to time, assign to any branch, lending office, or affiliate or such Bank Affiliate all or any part of its rights and obligations under the Loan Documents by notice to the Administrative Agent and the Borrower. It is further agreed that each bank or other financial institution which executes and delivers to the Administrative Agent Agent, and the Borrower hereunder an Assignment and Assumption Acceptance substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent D hereto (an “"Assignment and Assumption”Acceptance") together with an assignment fee in the amount of $3,500 2,500 payable by the assigning Bank to the Administrative Agent, shall, on the date specified in such Assignment and AssumptionAcceptance, become a party to this Agreement and the other Loan Documents for all purposes of this Agreement and the other Loan Documents, and its portion of the Commitment, Commitment and the Loans and Letters of Credit shall be as set forth in such Assignment and Assumption; provided, that the Administrative Agent may, in its sole discretion, elect to waive such assignment feeAcceptance. The Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations 55 -55- under this Agreement and the other Loan Documents. Upon the execution and delivery of such Assignment and Assumption Acceptance, (a) to the extent applicable, the Borrower shall issue Notes (to the bank or other financial institution a Note in the amount of such bank's or other financial institution's Commitment dated the date of the assignment or such other date as may be specified by the Agent, and otherwise completed in substantially the form of Exhibit A, and to the extent any assigning Bank has retained a portion of its obligations hereunder, a replacement Notes) or Note to the Administrative Agent shall make appropriate entries on the applicable loan account(s) to reflect such assignment of Loan(s)assigning Bank reflecting its assignment; and (b) this Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, bank or financial institution or Bank Affiliate as a party hereto and (ii) the status and rights of the Banks hereunder. Each Bank shall also have the right to grant participations to one or more banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, Commitment and the Loans and outstanding Letters of CreditLoans. The documents evidencing any such participation shall limit such participating bank’s, 's or financial institution’s or Bank Affiliate’s, 's voting rights with respect to this Agreement to the matters set forth in §15.9(b)(i) – (v); and each such participant shall be entitled to Section 30.7 which require the benefit approval of §5.5 hereof to the extent of its participation, subject to the limitations set forth thereinall Banks. Notwithstanding the foregoing, no assignment or participation shall (a) be made to the Borrower or any Affiliate or (b) operate to increase the Total Commitment Line hereunder or otherwise alter the substantive terms of this Agreement, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,00010,000,000, except as a result such amount may be reduced upon reductions of reductions in the Total Commitment Line pursuant to §2.3 Section 2(d) hereof. Anything contained in this §20 Section 34 to the contrary notwithstanding, any Bank may at any time pledge all or any portion of its interest and rights under this Agreement (including all or any portion of its Notes) to any of the twelve Federal Reserve Banks organized under §Section 4 of the Federal Reserve Act, 12 U.S.C. §Section 341. No such pledge or the enforcement thereof shall release the pledgor Bank from its obligations hereunder or under any of the other Loan Documents. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 hereof.
Appears in 1 contract
Assignment and Participation. It is understood and agreed that ---------- --- ------------- each Bank shall have the right to assign at any time all or a portion of its Commitment Percentage and interests in the risk relating to the Loans, outstanding Letters of Credit Credit, and its Commitment hereunder in an amount equal to or greater than $5,000,000 (which assignment shall be of an equal percentage of the Commitment, the Loans and outstanding Letters of Credit unless otherwise agreed to by the Borrower and the Administrative Agent) $5,000,000 (or, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to such Bank’s Commitment; provided that prior to any Commitment reductions pursuant to §2.3.1, such Bank’s Commitment was at least $5,000,000), to additional banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) with the prior written approval of the Administrative Agent, the Swing Line Bank and each Issuing Bank Agent and, so long as if no Default or Event of Default has occurred and is continuingexists, the consent of the Borrower (provided that (i) the Borrower’s consent shall not be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof)Borrowers, which approvals shall not be unreasonably withheld. Any Bank may at any time, and from time to time, assign to any branch, lending office, or affiliate or such Bank Affiliate all or any part of its rights and obligations under the Loan Documents by notice to the Administrative Agent and the Borrower. It is further agreed that each bank or other financial institution which executes and delivers to the Administrative Agent and the Borrower Borrowers hereunder an Assignment and Assumption Acceptance substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent (an “Assignment and Assumption”) hereto together with an assignment fee in the amount of $3,500 2,500 payable by the assigning Bank to the Administrative Agent, shall, on the date specified in such Assignment and AssumptionAcceptance, become a party to this Agreement and the other Loan Documents for all purposes of this Agreement and the other Loan Documents, and its portion of the Commitment, the Loans and Letters of Credit shall be as set forth in such Assignment and Assumption; provided, that the Administrative Agent may, in its sole discretion, elect to waive such assignment feeAcceptance. The Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations under this Agreement and the other Loan DocumentsAgreement. Upon the execution and delivery of such Assignment and Assumption Acceptance, (a) the Borrowers shall issue to the bank or other financial institution a Note in the amount of such bank's or other financial institution's Commitment dated the date of the assignment or such other date as may be specified by the Agent and otherwise completed in substantially the form of Exhibit A and to the extent applicableany assigning Bank has retained a portion of its obligations hereunder, an appropriate replacement Note to the assigning Bank reflecting its assignment; (b) the Agent shall distribute to the Borrowers, the Borrower shall issue Notes (Banks and replacement Notes) such bank or the Administrative Agent shall make appropriate entries on the applicable loan account(s) to reflect financial institution a schedule reflecting such assignment of Loan(s)changes; and (bc) this Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, bank or financial institution or Bank Affiliate as a party hereto and (ii) the status and rights of the Banks hereunder. Each Bank shall also have the right to grant participations to one or more banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the Loans and outstanding Letters of Credit. The documents evidencing any such participation shall limit such participating bank’s, bank or financial institution’s or Bank Affiliate’s, institutions voting rights with respect to this Agreement to the matters set forth in §15.9(b)(i) – (v); and each such participant shall be entitled to S)14.8 which require the benefit vote of §5.5 hereof to the extent of its participation, subject to the limitations set forth thereinall Banks. Notwithstanding the foregoing, no assignment or participation shall (a) be made to the Borrower or any Affiliate or (b) operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,000, except as a result of such amount may be reduced upon reductions in the Total Commitment pursuant to §2.3 (S)2.2 hereof. Anything contained in this §20 (S)18 to the contrary notwithstanding, any Bank may at any time pledge all or any portion of its interest and rights under this Agreement (including all or any portion of its Notes) to any of the twelve Federal Reserve Banks Lenders organized under §4 (S)4 of the Federal Reserve Act, 12 U.S.C. §341(S)341. No such pledge or the enforcement thereof shall release the pledgor Bank Lender from its obligations hereunder or under any of the other Loan Documents. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 hereof.
Appears in 1 contract
Samples: Revolving Credit Agreement (Eastern Environmental Services Inc)
Assignment and Participation. It is understood and agreed that each Bank shall have the right to assign at any time all or a portion of its Commitment Percentage and interests in the risk relating to the Loans, outstanding Letters of Credit and its Commitment hereunder in an amount equal to or greater than (unless otherwise agreed to by the Borrower and the Administrative Agent) $5,000,000 (or, if a Bank’s 's Commitment is less than $5,000,000, in a minimum amount equal to such Bank’s 's Commitment; , provided that prior to any Commitment reductions pursuant to §2.3.1Section 2.3, such Bank’s 's Commitment was at least $5,000,000), 10,000,000) to additional banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) with the prior written approval of the Administrative Agent, the Swing Line Bank and each Issuing Bank Agent and, so long as no Event of Default has occurred and is continuing, the consent of the Borrower (provided that (i) the Borrower’s consent shall not be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof), which approvals shall not be unreasonably withheld. Any Bank may at any time, and from time to time, assign to any branch, lending office, or affiliate of such Bank Affiliate all or any part of 76 -70- its rights and obligations under the Loan Documents by notice to the Administrative Agent and the Borrower. It is further agreed that each bank or other financial institution which executes and delivers to the Administrative Agent and the Borrower hereunder an Assignment and Assumption Acceptance substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent G hereto (an “"Assignment and Assumption”Acceptance") together with an assignment fee in the amount of $3,500 payable by the assigning Bank to the Administrative Agent, shall, on the date specified in such Assignment and AssumptionAcceptance, become a party to this Agreement and the other Loan Documents for all purposes of this Agreement and the other Loan Documents, and its portion of the Commitment, the Loans and Letters of Credit shall be as set forth in such Assignment and Assumption; provided, that the Administrative Agent may, in its sole discretion, elect to waive such assignment feeAcceptance. The Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations under this Agreement and the other Loan Documents. Upon the execution and delivery of such Assignment and Assumption Acceptance, (a) the Borrower shall issue to the assignee bank or other financial institution Notes in the amount of such bank's or other financial institution's Commitment dated the date of the assignment or such other date as may be specified by the Administrative Agent, and otherwise completed in substantially the form of Exhibits A or B, and to the extent any assigning Bank has retained a portion of its obligations hereunder, a replacement Syndicated Note, to the assigning Bank reflecting its assignment; (b) to the extent applicable, the Borrower shall issue Notes a Competitive Bid Note in substantially the form of Exhibit C (and a replacement NotesCompetitive Bid Note) or the Administrative Agent shall make appropriate entries on the applicable loan account(s) Competitive Bid Loan Accounts to reflect such assignment of Competitive Bid Loan(s); and (bc) this Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, bank or financial institution or Bank Affiliate as a party hereto and (ii) the status and rights of the Banks hereunder. Each Bank shall also have the right to grant participations to one or more banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the Loans and outstanding Letters of Credit. The documents evidencing any such participation shall limit such participating bank’s, 's or financial institution’s or Bank Affiliate’s, 's voting rights with respect to this Agreement to the matters set forth in §15.9(b)(iSection 16.8(b)(i) – - (v); and each such participant shall be entitled to the benefit of §5.5 hereof to the extent of its participation, subject to the limitations set forth therein. Notwithstanding the foregoing, no assignment or participation shall (a) be made to the Borrower or any Affiliate or (b) operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,00010,000,000, except as a result of reductions in the Total Commitment pursuant to §Section 2.3 hereof. Anything contained in this §20 Section 21 to the contrary notwithstanding, any Bank may at any time pledge all or any portion of its interest and rights under this Agreement (including all or any portion of its Notes) to any of the twelve Federal Reserve Banks organized under §Section 4 of the Federal Reserve Act, 12 U.S.C. §Section 341. No such pledge or the enforcement thereof shall release the pledgor Bank from its obligations hereunder or under any of the other Loan Documents. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; 77 -71- provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 Section 19 hereof.
Appears in 1 contract
Assignment and Participation. It is understood and agreed that each Bank shall have the right to assign or participate at any time all or a portion of its Commitment Percentage and interests in the risk relating to the Loans, any Loans and outstanding Letters of Credit and its Commitment hereunder in an amount equal to or greater than $10,000,000 (unless otherwise agreed to by which assignment shall be of an equal percentage of the Borrower Commitment, the Loans and the Administrative Agentoutstanding Letters of Credit) $5,000,000 (or, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to such Bank’s Commitment; provided that prior to any Commitment reductions pursuant to §2.3.1, such Bank’s Commitment was at least $5,000,000), to additional banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) so long as the Agent will be the Agent hereunder and with the prior written approval consent of the Administrative Agent, the Swing Line Bank and each Issuing Bank Agent and, so long as no unless a Default or an Event of Default has shall have occurred and is be continuing, the consent of the Borrower (provided that (i) the Borrower’s consent shall not be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof)Borrowers, which approvals shall not be unreasonably withheld. Any Bank may at any time; and further, and from time to time, assign to any branch, lending office, or Bank Affiliate all or any part of its rights and obligations under the Loan Documents by notice to the Administrative Agent and the Borrower. It is further agreed that each bank or other financial institution which executes and delivers to the Administrative Agent Banks and the Borrower Borrowers hereunder an Assignment a counterpart joinder in form and Assumption substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent (an “Assignment and Assumption”) together with an assignment fee in the amount of $3,500 payable by the assigning Bank substance satisfactory to the Administrative Agent, Banks and such bank or financial institution shall, on the date specified in such Assignment and Assumptioncounterpart joinder, become a party to this Agreement and the other Loan Documents for all purposes of this Agreement and the other Loan DocumentsAgreement, and its portion of the Commitment, the Loans and Letters of Credit Commitment shall be as set forth in such Assignment and Assumption; provided, that the Administrative Agent may, in its sole discretion, elect to waive such assignment fee. The Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations under this Agreement and the other Loan Documentscounterpart joinder. Upon the execution and delivery of such Assignment counterpart joinder and Assumption payment by the assigning bank of an assignment fee in the amount of $3,500 to the Agent, (a) to the extent applicable, the Borrower Borrowers shall issue Notes (to such bank or other financial institution a Note in the amount of such bank's or other financial institution's Commitment dated the Closing Date or such other date as may be specified by the Agent and replacement Notes) or otherwise completed in substantially the Administrative Agent shall make appropriate entries on the applicable loan account(s) to reflect such assignment form of Loan(s)Exhibit A hereto; and (b) the Agent shall distribute to the Borrowers, the Banks and such bank or financial institution a schedule reflecting such changes; (c) this Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, such bank or financial institution or Bank Affiliate as a party hereto and (ii) the status and rights of the Banks and Agent hereunder. Each Bank ; and (d) the Borrowers shall also have take such action as the right Agent may reasonably request to grant participations perfect any security interests in favor of the Banks, including any bank or financial institution which becomes a party to one or more banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the Loans and outstanding Letters of Creditthis Agreement. The documents evidencing any such participation shall limit may provide that, except with the consent of the bank or financial institution that is a party thereto, such participating bank’s, financial institution’s Bank will not consent to (a) the reduction in or Bank Affiliate’s, voting rights forgiveness of the stated principal of or rate of interest on or Commitment Fee with respect to this Agreement the portion of any Loan subject to such participation or assignment, (b) the extension or postponement of any stated date fixed for payment of principal or interest or Commitment Fee with respect to the matters set forth in §15.9(b)(i) – (v); and each such participant shall be entitled to the benefit portion of §5.5 hereof to the extent of its participation, any Loan subject to such participation or assignment, or (c) the limitations set forth thereinwaiver or reduction of any right to indemnification of such Bank hereunder. Notwithstanding the foregoing, no assignment syndication or participation shall (a) be made to the Borrower or any Affiliate or (b) operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,000, except as a result of reductions in the Total Commitment pursuant to §2.3 hereof. Anything contained in this §20 to the contrary notwithstanding, any Bank may at any time pledge all or any portion of its interest and rights contemplated under this Agreement (including all or any portion of its Notes) to any of the twelve Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341. No such pledge or the enforcement thereof shall release the pledgor Bank from its obligations hereunder or under any of the other Loan Documents. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 hereofSection 2.2(c).
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Assignment and Participation. It is understood and agreed that each Bank shall have the right to assign at any time all or a portion of its Commitment Percentage and interests in the risk relating to the Loans, outstanding Letters of Credit Credit, and its Commitment hereunder in an amount equal to or greater than $5,000,000 (which assignment shall be of an equal percentage of the Commitment, the Loans and outstanding Letters of Credit unless otherwise agreed to by the Borrower and the Administrative Agent) $5,000,000 (or, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to such Bank’s Commitment; provided that prior to any Commitment reductions pursuant to §2.3.1, such Bank’s Commitment was at least $5,000,000), to additional banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) with the prior written approval of the Administrative Agent, the Swing Line Bank and each Issuing Bank Agent and, so long as no Default or Event of Default has occurred and is continuing, the consent of the Borrower (provided that (i) the Borrower’s consent shall not be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof)Borrowers, which approvals shall not be unreasonably withheld. Any Bank may at any time, and from time to time, assign to any branch, lending office, or affiliate of such Bank Affiliate all or any part of its rights and obligations under the Loan Documents by notice to the Administrative Agent and the BorrowerBorrowers. It is further agreed that each bank or other financial institution which executes and delivers to the Administrative Agent and the Borrower Borrowers hereunder an Assignment and Assumption Acceptance substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent (an “Assignment and Assumption”) hereto together with an assignment fee in the amount of $3,500 payable by the assigning Bank to the Administrative Agent, shall, on the date specified in such Assignment and AssumptionAcceptance, become a party to this Agreement and the other Loan Documents for all purposes of this Agreement and the other Loan Documents, and its portion of the Commitment, the Loans and Letters of Credit shall be as set forth in such Assignment and Assumption; provided, that the Administrative Agent may, in its sole discretion, elect to waive such assignment feeAcceptance. The Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations under this Agreement and the other Loan DocumentsAgreement. Upon the execution and delivery of such Assignment and Assumption Acceptance, (a) the Borrowers shall issue to the bank or other financial institution a Note in the amount of such bank's or other financial institution's Commitment dated the date of the assignment or such other date as may be specified by the Agent and otherwise completed in substantially the form of Exhibit A and to the extent applicableany assigning Bank has retained a portion of its obligations hereunder, an appropriate replacement Note to the assigning Bank reflecting its assignment; (b) the Agent shall distribute to the Borrowers, the Borrower shall issue Notes (Banks and replacement Notes) such bank or the Administrative Agent shall make appropriate entries on the applicable loan account(s) to reflect financial institution a schedule reflecting such assignment of Loan(s)changes; and (bc) this Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, bank or financial institution or Bank Affiliate as a party hereto and (ii) the status and rights of the Banks hereunder. Each Bank shall also have the right to grant participations to one or more banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the Loans and outstanding Letters of Credit. The documents evidencing any such participation shall limit such participating bank’s, bank or financial institution’s or Bank Affiliate’s, institutions voting rights with respect to this Agreement to the matters set forth in §15.9(b)(i) – (v); and each such participant shall be entitled to ss.14.8 which require the benefit vote of §5.5 hereof to the extent of its participation, subject to the limitations set forth thereinall Banks. Notwithstanding the foregoing, no assignment or participation shall (a) be made to the Borrower or any Affiliate or (b) operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement. Without the prior consent of the Agent and the Borrowers, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,000, except as a result of such amount may be reduced upon reductions in the Total Commitment pursuant to §2.3 ss.2.2 hereof. Anything contained in this §20 ss.17 to the contrary notwithstanding, any Bank may at any time pledge all or any portion of its interest and rights under this Agreement (including all or any portion of its Notes) to any of the twelve Federal Reserve Banks Lenders organized under §4 ss.4 of the Federal Reserve Act, 12 U.S.C. §341ss.341. No such pledge or the enforcement thereof shall release the pledgor Bank Lender from its obligations hereunder or under any of the other Loan Documents. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 hereof.
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Assignment and Participation. It is understood and agreed that each Bank shall have the right to assign at any time all or a any portion of its Commitment Percentage and interests in the risk relating to the Loans, Loans and outstanding Letters of Credit and its Commitment hereunder in an amount equal to or greater than $2,500,000 (which assignment shall be of an equal percentage of its Commitment, the Loans and outstanding Letters of Credit unless otherwise agreed to by the Borrower and the Administrative Agent) $5,000,000 (or, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to such Bank’s Commitment; provided that prior to any Commitment reductions pursuant to §2.3.1, such Bank’s Commitment was at least $5,000,000), to additional banks, other financial institutions or Bank Affiliates (other than Defaulting Banks) Eligible Assignees with the prior written approval of the Administrative Agent, the Swing Line Bank and each Issuing Bank Agent and, so long as if no Default or Event of Default has occurred and is continuingexists, the consent of the Borrower (provided that (i) the Borrower’s consent shall not be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof)Borrowers, which approvals shall not be unreasonably withheldwithheld or delayed; PROVIDED, HOWEVER, that the Administrative Agent may assign without the consent of the Borrowers such portion of its Commitment and interests in the risk relating to the Loans and outstanding Letters of Credit necessary to reach its desired hold level. Any Bank may at any time, and from time to time, assign to any branch, lending office, or affiliate of such Bank Affiliate all or any part of its rights and obligations under the Loan Documents by notice to the Administrative Agent and the BorrowerBorrowers. It is further agreed that each bank or other financial institution Eligible Assignee which executes and delivers to the Administrative Agent and the Borrower Borrowers hereunder an Assignment and Assumption Acceptance substantially in the form of Exhibit E hereto, or such other form approved by the Administrative Agent (an “Assignment and Assumption”) EXHIBIT F hereto together with an assignment fee in the amount of $3,500 payable by the assigning Bank to the Administrative Agent, shall, on the date specified in such Assignment and AssumptionAcceptance, become a party to this Credit Agreement and the other Loan Documents for all purposes of this Credit Agreement and the other Loan Documents, and its portion of the Commitment, the Loans and Letters of Credit shall be as set forth in such Assignment and Assumption; provided, that the Administrative Agent may, in its sole discretion, elect to waive such assignment feeAcceptance. The Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (except for indemnity rights arising out of the period prior to such assignment) and be released from its obligations under this Agreement and the other Loan DocumentsCredit Agreement. Upon the execution and delivery of such Assignment and Assumption (a) Acceptance, the Borrowers shall issue to the Eligible Assignee a Note in the amount of such Eligible Assignee's Commitment, dated the date of the assignment and otherwise completed in substantially the form of EXHIBIT B and to the extent applicableany assigning Bank has retained a portion of its obligations hereunder, an appropriate replacement Note to the Borrower shall issue Notes assigning Bank reflecting its assignment; (and replacement Notesb) or the Administrative Agent shall make appropriate entries on distribute to the applicable loan account(s) to reflect Borrowers, the Banks and such assignment of Loan(s)Eligible Assignee a schedule reflecting such changes; and (bc) this Credit Agreement and Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status of the bank, financial institution or Bank Affiliate Eligible Assignee as a party hereto and (ii) the status and rights of the Banks hereunder. Each Bank shall also have the right to grant participations to one or more banks, banks or other financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the Loans and outstanding Letters of Credit. The documents evidencing any such participation shall limit such participating bank’s, bank or financial institution’s or Bank Affiliate’s, institutions voting rights with respect solely to this Agreement to the those matters set forth in §15.9(b)(i) – (v); and each such participant shall be entitled to ss.14.8 which require the benefit vote of §5.5 hereof to the extent of its participation, subject to the limitations set forth thereinall Banks. Notwithstanding the foregoing, no assignment or participation shall (a) be made to the Borrower or any Affiliate or (b) operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Credit Agreement, and no Bank which retains a Commitment hereunder shall have a Commitment of less than $5,000,0002,500,000, except as a result of such amount may be reduced upon reductions in the Total Commitment pursuant to §2.3 ss.2.2 hereof. Anything contained in this §20 ss.18 to the contrary notwithstanding, any Bank may at any time pledge pledge, without the consent of the Borrower or the Administrative Agent, all or any portion of its interest and rights under this Credit Agreement (including all or any portion of its Notes) to any of the twelve Federal Reserve Banks organized under §4 ss.4 of the Federal Reserve Act, 12 U.S.C. §341. No such pledge or the enforcement thereof shall release the pledgor Bank from its obligations hereunder or under any of the other Loan Documents. The Borrower agrees that in addition to disclosures made in accordance with standard and customary banking practices any Bank may disclose information obtained by such Bank pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder; provided that such assignees or participants or potential assignees or participants shall agree to be bound by §18 hereof.
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