Common use of Assignment and Participations Clause in Contracts

Assignment and Participations. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, provided that the Borrower may not assign or otherwise transfer all or any part of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer all or any part of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary.

Appears in 2 contracts

Samples: Revolving Credit Agreement (Costco Wholesale Corp /New), Revolving Credit Agreement (Costco Wholesale Corp /New)

Assignment and Participations. This Agreement Agent and Lenders shall be binding upon have the right, subject to this Section 10.1, to assign, sell, negotiate, pledge or hypothecate all or any portion of their rights and inure to the benefit of the parties and their respective successors and assigns obligations hereunder. No Lender shall assign, provided that the Borrower may not assign sell, negotiate, pledge, hypothecate or otherwise transfer all or any part portion of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Agent in and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer all or any part of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided, however, that in either case no (an “Assignee”) (a) without (x) Agent’s prior consent and (y) Borrower’s prior consent (which consent shall not be unreasonably withheld) unless such assignment is to an Eligible Assignee or occurs during the existence of an Event of Default, in which case Borrower’s consent shall not be required, ( as distinguished from b) other than in compliance with Section 10.5 hereof, (c) unless the sale aggregate principal amount of a participation) (i) shall the Loan to be made in an amount less than held by the Assignee after such transaction is Ten Million Dollars ($10,000,000) nor or more ( ii or such lesser amount approved by Agent) shall be made if and (d) unless, after giving effect to such assignment transaction, such Lender’s aggregate unassigned interest in the aggregate Loan shall be in a principal amount of the Loans and unused Commitment of the assigning Lender would be less than at least Ten Million Dollars ($10,000,000) (or such lesser amount approved by Agent) unless such transaction encompasses all of such Lender’s rights in and to the Loan, in which case such Lender shall have assigned all of its rights in and to the Loan; provided, further however, that any Lender shall have the right at any time without the consent of or notice to Agent, any other Lender or other Person to grant a security interest in connection all or any portion of such Lender’s interest in the Note or the Loan to any Federal Reserve Bank or the central reserve bank or similar authority of any other country to secure any obligation of such Lender to such bank or similar authority (a “Central Bank Pledge”). Effective on any such assignment and assumption by the assignee and on compliance with any assignment (as distinguished from the sale of a participation) Section 10.5 hereof, the assigning Lender shall pay have no further liability hereunder with respect to Agent the interest of such Lender that was the subject of such transfer and such Assignee shall be a fee Lender with respect to such interest. Except for a Central Bank Pledge, a Lender making any such assignment shall notify Borrower of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security same, specifying the Assignee thereof and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent amount of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary assignment.

Appears in 1 contract

Samples: Loan Agreement (Gramercy Capital Corp)

Assignment and Participations. This Agreement Agent and Lenders shall have the right, subject to this Section 7.1, to assign, sell, negotiate, pledge or hypothecate all or any portion of their rights and obligations hereunder. No Lender shall assign, sell, negotiate, pledge, hypothecate or otherwise transfer all or any portion of its rights in and to the Loan to any other Person (an “Assignee”) (a) without Agent’s prior consent (b) other than in compliance with Section 7.5 hereof and (c) unless such transaction shall be binding upon an assignment of a constant (and inure not varying), ratable percentage of such Lender’s interest in the Loan; provided, however, any Lender shall have the right at any time without the consent of or notice to the benefit of the parties and their respective successors and assigns Agent, provided that the Borrower may not any other Lender or other Person to grant a security interest in, pledge, assign or otherwise transfer all or any part portion of its rights or obligations hereunder or under any other Loan Document without such Lender’s interest in the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender Note or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign Bank or otherwise transfer all the central reserve bank or any part similar authority of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender country to secure any obligation of such Lender to such bank or similar authority (a “Central Bank Pledge”) and to the trustee, administrator or receiver (or their respective nominees, collateral agents or collateral trustees) of a mortgage pool securing covered mortgage bonds issued by a German mortgage bank, or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided permitted to issue covered mortgage bonds, however under German Pfandbrief legislation, that as such legislation may be amended and in either case no effect from time to time, or any substitute or successor legislation (a “Pfandbrief Pledge”). Effective on any such assignment (as distinguished from and assumption by the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans assignee and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided on compliance with Section 7.5 hereof, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay have no further liability hereunder with respect to Agent the interest of such Lender that was the subject of such transfer arising from and after the date of such assignment and assumption and such Assignee shall be a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in Lender with respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such interest from and after the date of such assignment and assumption. No assignment and assumption shall release any Lender pursuant from any liability hereunder prior to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean such assignment and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary assumption.

Appears in 1 contract

Samples: Loan Agreement (Interstate Hotels & Resorts Inc)

Assignment and Participations. This Agreement Agent and Lenders shall be binding upon have the right, subject to this Section 8.1, to assign, sell, negotiate, pledge or hypothecate all or any portion of their rights and inure to the benefit of the parties and their respective successors and assigns obligations hereunder. No Lender shall assign, provided that the Borrower may not assign sell, negotiate, pledge, hypothecate or otherwise transfer all or any part portion of its rights or obligations hereunder or under in and to the Loan to any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time Person (an “Assignee”) (a) sell without Agent’s prior consent, not to be unreasonably withheld in the case of a proposed transfer to an Assignee which is an Eligible Assignee (provided that Agent’s consent shall not be required with respect to the assignment, sale, negotiation, pledge or hypothecation by any entity participation interests Lender of all or any portion of its interest in its Competitive Bid Loans the Loan to (i) an Approved Assignee or (ii) another Lender or an Affiliate of any Lender, unless, in the case of clause (i) or clause (ii), the proposed transferee is an Affiliate of Loan Parties, in which case the prior unanimous consent of all Lenders shall be required); or (b) sell other than in compliance with Section 8.5 hereof; (c) unless such transaction shall be an assignment of a constant (and not varying), ratable percentage of such Lender’s interest in the Loan; (d) unless the aggregate principal amount of the Loan to any Eligible be held by the Assignee participation interests after such transaction is Fifteen Million Dollars ($15,000,000) or more (or such lesser amount approved by Agent); (e) unless, after giving effect to such transaction, such Lender’s aggregate unassigned interest in the Loan shall be in a principal amount of at least Fifteen Million Dollars ($15,000,000) (or such lesser amount approved by Agent) unless such transaction encompasses all of such Lender’s rights in and to the Loan, in which case such Lender shall have assigned all of its Committed Loans rights in and Commitment. Such sales may be made to the Loan, and (f) without the consent of Borrower (not to be unreasonably withheld, delayed or conditioned), which consent shall be required solely as long as no Event of Default shall exist and solely to the extent that the proposed transfer is to an Assignee which is not an Eligible Assignee; provided, however, any Lender shall have the right at any time without the consent of or notice to Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation other Person to grant a security interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part portion of its such Lender’s interest under in the Notes or the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign Bank or otherwise transfer all the central reserve bank or any part similar authority of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, country to secure any obligation of such Lender to such bank or the Borrower to similar authority (a “Central Bank Pledge”) or a Pfandbrief Transfer (as defined below). Effective on any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided, however, that in either case no such assignment (as distinguished from and assumption by the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans assignee and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided on compliance with Section 8.5 hereof, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay have no further liability hereunder with respect to Agent the interest of such Lender that was the subject of such transfer and such Assignee shall be a fee of Three Thousand Five Hundred Dollars ($3,500) Lender with respect to such interest. Except for each proposed assignee. The assignee of a Central Bank Pledge or a Pfandbrief Transfer, a Lender making any permitted sale or such assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the notify Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by under the context of this Agreement Ground Leases, the word "Lender" where used in this Agreement Ground Lessors of same, specifying the Assignee thereof and the amount of the assignment. The assigning or selling Lender shall mean pay the reasonable and include documented out-of-pocket costs incurred by Agent to facilitate any holder of a Note originally issued to a Lender hereunder assignment, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender ( sale or other than an assignment of a Competitive Bid Loan) made in conformance with the terms of transfer under this Section 10.05 shall result in a corresponding adjustment to the selling 8.1, including without limitation, Agent’s reasonable and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, documented out-of-pocket legal fees and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary expenses.

Appears in 1 contract

Samples: Loan Agreement (Sunstone Hotel Investors, Inc.)

Assignment and Participations. This Agreement Agent and Lenders shall be binding upon have the right, subject to this Section 8.1, to assign, sell, negotiate, pledge or hypothecate all or any portion of their rights and inure to the benefit of the parties and their respective successors and assigns obligations hereunder. No Lender shall assign, provided that the Borrower may not assign sell, negotiate, pledge, hypothecate or otherwise transfer all or any part portion of its rights or obligations hereunder or under in and to the Loan to any other Person (an “Assignee”) (a) without Agent’s prior consent, not to be unreasonably withheld in the case of a proposed transfer to an Assignee which is an Eligible Assignee (provided that Agent’s consent shall not be required with respect to the assignment, sale, negotiation, pledge or hypothecation by any Lender of all or any portion of its interest in the Loan Document without to (i) an Approved Assignee or (ii) another Lender or an Affiliate of any Lender, unless, in the case of clause (i) or clause (ii), the proposed transferee is an Affiliate of Loan Parties, in which case the prior written unanimous consent of all Lenders shall be required; (b) other than in compliance with Section 8.5 hereof; (c) unless such transaction shall be an assignment of a constant (and not varying), ratable percentage of such Lender’s interest in the Agent and all Loan; (d) unless the Lenders, and any such assignment or transfer purported aggregate principal amount of the Loan to be made without held by the Assignee after such consent transaction is Fifteen Million Dollars ($15,000,000) or more (or such lesser amount approved by Agent); (e) unless, after giving effect to such transaction, such Lender’s aggregate unassigned interest in the Loan shall be ineffective. Any in a principal amount of at least Fifteen Million Dollars ($15,000,000) (or such lesser amount approved by Agent) unless such transaction encompasses all of such Lender’s rights in and to the Loan, in which case such Lender may shall have assigned all of its rights in and to the Loan and (f) unless such Assignee shall be a “Consented-To-Lender” under the Ground Lease or Ground Lessor shall have otherwise consented thereto; provided, however, any Lender shall have the right at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the or notice to Agent, any other Lender or other Person (other than as required under the Borrower provided, however, (a Ground Lease) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation to grant a security interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part portion of its such Lender’s interest under in the Note or the Loan Documents for security purposes (i) to any Federal Reserve Bank. Any Lender may assign Bank or otherwise transfer all the central reserve bank or any part similar authority of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender country to secure any obligation of such Lender to such bank or similar authority (a “Central Bank Pledge”) and/or (ii) to a trustee, administrator or receiver (or their respective nominees, collateral agents or collateral trustees) of a mortgage pool securing covered mortgage bonds issued by a German mortgage bank, or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided meeting the Eligibility Requirements and permitted to issue covered mortgage bonds, however under German Pfandbrief legislation, that as such legislation may be amended and in either case no effect from time to time, or any substitute or successor legislation (a “Covered Bond Pool Pledge”). Effective on any such assignment (as distinguished from and assumption by the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans assignee and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided on compliance with Section 8.5 hereof, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay have no further liability hereunder with respect to Agent the interest of such Lender that was the subject of such transfer and such Assignee shall be a fee of Three Thousand Five Hundred Dollars ($3,500) Lender with respect to such interest. Except for each proposed assignee. The assignee of a Central Bank Pledge or a Covered Bond Pool Pledge, a Lender making any permitted sale or such assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the notify Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by under the context of this Agreement Ground Lease, the word "Lender" where used in this Agreement Ground Lessor of same, specifying the Assignee thereof and the amount of the assignment. The assigning or selling Lender shall mean pay the reasonable and include documented out-of-pocket costs incurred by Agent to facilitate any holder of a Note originally issued to a Lender hereunder assignment, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender ( sale or other than an assignment of a Competitive Bid Loan) made in conformance with the terms of transfer under this Section 10.05 shall result in a corresponding adjustment to the selling 8.1, including without limitation, Agent’s reasonable and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, documented out-of-pocket legal fees and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary expenses.

Appears in 1 contract

Samples: Loan Agreement (Sunstone Hotel Investors, Inc.)

Assignment and Participations. This Agreement Agent and Lenders shall be binding upon have the right, subject to this Section 9.1, to assign, sell, negotiate, pledge or hypothecate all or any portion of their rights and inure to the benefit of the parties and their respective successors and assigns obligations hereunder. No Lender shall assign, provided that the Borrower may not assign sell, negotiate, pledge, hypothecate or otherwise transfer all or any part portion of its rights or obligations hereunder or under in and to the Loan to any other Loan Document Person (an “Assignee”) (a) without the Agent’s prior written consent of the Agent consent, (b) other than in compliance with Section 9.5 hereof; and all the Lenders, and any (c) unless such assignment or transfer purported to be made without such consent transaction shall be ineffective. Any an assignment of a constant (and not varying), ratable percentage of such Lender’s interest in the Loan; provided, however, any Lender may shall have the right at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the or notice to Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation other Person to grant a security interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part portion of its such Lender’s interest under in the Note or the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign Bank or otherwise transfer all the central reserve bank or any part similar authority of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, country to secure any obligation of such Lender to such bank or the Borrower to similar authority (a “Central Bank Pledge”). Effective on any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided, however, that in either case no such assignment (as distinguished from and assumption by the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans assignee and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided on compliance with Section 9.5 hereof, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay have no further liability hereunder with respect to Agent the interest of such Lender that was the subject of such transfer and such Assignee shall be a fee Lender with respect to such interest. Except for a Central Bank Pledge, a Lender making any such assignment shall notify Borrower of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security same, specifying the Assignee thereof and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent amount of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary assignment.

Appears in 1 contract

Samples: Loan Agreement (Interstate Hotels & Resorts Inc)

Assignment and Participations. This GE Capital may assign its rights and delegate its obligations as a Lender under this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns and, provided that the Borrower further, may not assign assign, or otherwise transfer sell participations in, all or any part of its Pro Rata Share of the Term Loan or any other interest herein or in its Term Note to an Affiliate or to any another Person. Unless Agent shall have otherwise agreed in writing, no other Lender shall assign any of its rights or delegate any of its obligations hereunder under this Agreement or under any of the other Loan Document without the prior written consent of the Agent and all the Lenders Documents or assign, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing in, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its Pro Rata Share of the Term Loan or any other interest under the Loan Documents for security purposes herein or in its Term Note to any Federal Reserve Bank Affiliate or other Person. Any In the case of an assignment by GE Capital under this Section 9.1, (or in the event, if any, that Agent shall so agree in writing, an assignment by another Lender), the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Term Loan. Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender." GE Capital may assign or otherwise transfer (or, in the event, if any, that Agent shall so agree in advance in writing, another Lender may) sell participations in all or any part of its interest under the Loan Documents (y) without the consent Pro Rata Share of the Agent, Term Loan to an Affiliate or any other Lender Person; provided that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation and the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except action directly affecting (a) any reduction in the principal amount, interest rate or fees payable with respect to the Borrower to Term Loan; (b) any extension of the assigning Lender's Affiliates or to final Scheduled Installment; and (c) any release of any Collateral with a value in excess of $2,500,000 in the aggregate (other Lender or any Eligible Assignee; or (z) than in accordance with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context terms of this Agreement, the word Collateral Documents or the other Loan Documents). Borrower hereby acknowledges and agrees that any participation will give rise to a direct obligation of Borrower to the participant and the participant shall for purposes of Sections 1.14, 1.16 and 9.3 be considered to be a "Lender ." where used Any Lender permitted to sell assignments and participations under this Section 9.1 may furnish any information concerning Borrower and its Subsidiaries in the possession of that Lender from time to time to assignees and participants (including prospective assignees and participants). Borrower shall assist any Lender permitted to sell assignments or participations under this Agreement Section 9.1 in whatever manner necessary in order to enable or effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall mean be requested and include any holder the preparation of a Note originally issued to a Lender hereunder informational materials for, and each the participation of relevant management in meetings with, potential assignees or participants. Borrower shall certify the correctness, completeness and accuracy of all descriptions of Borrower and its affairs contained in any selling materials and all information provided by it and included in such holder materials. No information provided to potential co-Lenders or participants shall be bound provided unless and until such potential co-Lenders or participants have signed a confidentiality agreement substantially in the form provided to Borrower and used by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment Agent prior to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary Closing Date.

Appears in 1 contract

Samples: Amended and Restated Term Loan Agreement (Zenith Electronics Corp)

Assignment and Participations. This GE Capital may assign its rights and delegate its obligations as a Lender under this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns and, provided that the Borrower further, may not assign assign, or otherwise transfer sell participations in, all or any part of its Revolving Credit Advances, its Letter of Credit Obligations, its Commitments or any other interest herein or in its Amended Revolving Credit Note to an Affiliate or to any another Person. Unless Agent shall have otherwise agreed in writing, no other Lender shall assign any of its rights or delegate any of its obligations hereunder under this Agreement or under any of the other Loan Document without the prior written consent of the Agent and all the Lenders Documents or assign, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing in, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its Revolving Credit Advances, its Letter of Credit Obligations, its Commitments or any other interest under the Loan Documents for security purposes herein or in its Amended Revolving Credit Note to any Federal Reserve Bank Affiliate or other Person. Any In the case of an assignment by GE Capital under this Section 9.1, (or in the event, if any, that Agent shall so agree in writing, an assignment by another Lender), the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof. Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender." In all instances, each Lender's liability to make Revolving Credit Advances or incur Letter of Credit Obligations hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share. GE Capital may assign or otherwise transfer (or, in the event, if any, that Agent shall so agree in writing, another Lender may) sell participations in all or any part of its any Revolving Credit Advances made, or any Letter of Credit Obligations incurred, by it as a Lender to an Affiliate or any other Person; provided that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation and the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except action directly affecting (a) any reduction in the principal amount, interest under the Loan Documents rate or fees payable with respect to any Revolving Credit Advances in which such holder participates; ( y b) without the consent any extension of the Agent, any other Lender, or the Borrower to any final scheduled maturity date of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate principal amount of the Loans Revolving Credit Advances in which such holder participates; and unused Commitment of the assigning Lender would be less than Ten Million Dollars ( $10,000,000 c) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee release of any permitted sale or assignment (including assignments for security and sales Collateral with a value in excess of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, $2,500,000 in the case of sales of participations, aggregate (other than in accordance with the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context terms of this Agreement, the word Collateral Documents or the other Loan Documents). Borrower hereby acknowledges and agrees that any participation will give rise to a direct obligation of Borrower to the participant and the participant shall for purposes of Sections 1.15, 1.17 and 9.3 be considered to be a "Lender ." where used Unless Agent shall have otherwise agreed in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder writing, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a no Lender 's interest hereunder to another Lender ( , other than an assignment GE Capital, shall sell any participation in all or any part of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States any Revolving Credit Advances made, or any state thereof Letter of Credit Obligations incurred, by it to any Affiliate or other Person. Except as otherwise provided in this Section 9.1 no Lender shall, as between Borrower and that Lender, 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 the Revolving Credit Advances, the Amended Revolving Credit Notes or other Obligations owed to such Lender. Any Lender permitted to sell assignments and participations under this Section 9.1 may furnish any information concerning Borrower and its Subsidiaries in the possession of that Lender from time to time to assignees and participants (including prospective assignees and participants). Borrower shall assist any Lender permitted to sell assignments or participations under this Section 9.1 in whatever manner necessary in order to enable or effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and having the participation of relevant management in meetings with, potential assignees or participants. Borrower shall certify the correctness, completeness and accuracy of all descriptions of Borrower and its affairs contained in any selling materials and all information provided by it and included in such materials. No information provided to potential co-Lenders or participants shall be provided unless and until such potential co-Lenders or participants have signed a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located confidentiality agreement substantially in the United States of America; form provided to Borrower and used by Agent prior to the Closing Date ( iii) a Person that is primarily engaged as defined in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary Prior Credit Agreement).

Appears in 1 contract

Samples: Second Amended and Restated Credit Agreement (Zenith Electronics Corp)

Assignment and Participations. This Agreement Lenders shall be binding upon have the right, subject to this Section 9.1, to assign, sell, negotiate, pledge or hypothecate all or any portion of their rights and inure to the benefit of the parties and their respective successors and assigns obligations hereunder. No Lender shall assign, provided that the Borrower may not assign sell, negotiate, pledge, hypothecate or otherwise transfer all or any part portion of its rights or obligations hereunder or under in and to the Loan to any other Loan Document Person (an “Assignee”) (a) without the Agent’s prior written consent of the Agent and all the Lenders consent, and any which shall not be unreasonably withheld, unless such assignment or transfer purported is to be made without an Eligible Assignee, in which case no such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans required; or (b) sell to any Eligible Assignee participation interests other than in its Committed Loans compliance with Section 9.5 hereof; (c) unless such transaction shall be an assignment of a constant (and Commitment. Such sales may be made without not varying), ratable percentage of such Lender’s interest in the consent Loan; (d) unless the aggregate principal amount of the Loan to be held by the Assignee after such transaction is Five Million Dollars ($5,000,000) or more (or such lesser amount approved by Agent , any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment ); and ( b e) that unless, after giving effect to such transaction, such Lender’s aggregate unassigned interest in the selling Lender retains the right to vote as Loan shall be in a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or principal amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer all or any part of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than at least Ten Million Dollars ($10,000,000) nor ( ii or such lesser amount approved by Agent) unless such transaction encompasses all of such Lender’s rights in and to the Loan, in which case such Lender shall be made if after giving effect have assigned all of its rights in and to the Loan; provided, however, any Lender shall have the right at any time without the consent of or notice to Agent, any other Lender or other Person to grant a security interest in all or any portion of such Lender’s interest in the Note or the Loan to any Federal Reserve Bank, any Federal Home Loan Bank or similar U.S. federal institution or agency, or the central reserve bank or similar authority of any other country to secure any obligation of such Lender to such bank or similar authority (a “Central Bank Pledge”). Effective on any such assignment and assumption by the aggregate amount of the Loans assignee and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided on compliance with Section 9.5 hereof, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay have no further liability hereunder with respect to Agent the interest of such Lender that was the subject of such transfer and such Assignee shall be a fee Lender with respect to such interest. Except for a Central Bank Pledge, a Lender making any such assignment shall notify Borrower of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee same, specifying the Assignee thereof and the amount of the assignment. The assignee Notwithstanding the foregoing, in no event shall any assignment of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under an interest in the Loan Documents (excepting however be made to Borrower, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower Guarantor or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary their respective Affiliates.

Appears in 1 contract

Samples: Loan Agreement (Great Wolf Resorts, Inc.)

Assignment and Participations. This Agreement Subject to the terms of this Section 11.1, any Lender may make an assignment of, or sale of participations in, at any time or times, the Loan Documents, Loans and any Commitment or any portion thereof or interest therein, including any Lender’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require (x) the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee), and (y) the execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 11.1 and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 11.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all other Lenders hereunder. The assigning Lender shall be binding upon relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and inure after the date of such assignment. Each Borrower hereby acknowledges and agrees that any assignment permitted hereunder shall give rise to a direct obligation of the Borrowers to the benefit assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the parties and their respective successors and assigns, provided that applicable Commitment. In the Borrower may not assign event Agent or any Lender assigns or otherwise transfer transfers all or any part of its the Obligations, Agent or any such Lender shall so notify the Borrowers and the Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 11.1, any Lender may at any time pledge the Obligations held by it and such Lender’s rights or under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer all or any part of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary Document.

Appears in 1 contract

Samples: Credit Agreement (Devcon International Corp)

Assignment and Participations. This Agreement Subject to the terms of this Section 9.1, any Lender may make an assignment of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent, which consent, shall not be unreasonably withheld, and the execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; provided that such consent shall not be required with respect to an assignment to a Lender, an Affiliate of a Lender or to an investment fund that invests in commercial loans and that is managed or advised by a Lender, an Affiliate of a Lender, the same investment advisor that manages a Lender or by an Affiliate of such investment advisor; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment of a Revolving Loan Commitment, the assignee Lender shall have a Revolving Loan Commitment in an amount at least equal to $2,500,000; provided that such amounts shall not be applicable to any assignment to a Lender, an Affiliate of a Lender or to an investment fund that invests in commercial loans and that is managed or advised by a Lender, an Affiliate of a Lender, the same investment advisor that manages a Lender or by an Affiliate of such investment advisor; (iv) after giving effect to any such partial assignment of a Term Loan Commitment, the assignee Lender shall have a Term Loan Commitment in an amount at least equal to $2,000,000; provided that such amounts shall not be applicable to any assignment to a Lender, an Affiliate of a Lender or to an investment fund that invests in commercial loans and that is managed or advised by a Lender, an Affiliate of a Lender, the same investment advisor that manages a Lender or by an Affiliate of such investment advisor; (v) include a payment to Agent of an assignment fee of $3,500; and (vi) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed; provided that such consent shall not be required for an assignment to any Lender, an Affiliate of a Lender or to an investment fund that invests in commercial loans and that is managed or advised by a Lender, an Affiliate of a Lender, the same investment advisor that manages a Lender or by an Affiliate of such investment advisor. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all other Lenders hereunder. In addition, any assignment by a European Lender of its Loans and Commitments shall only be made as an integrated part of (and any such assignment shall be binding upon deemed to be and inure constitute evidence of) an assignment on a proportionate basis of such Lender’s rights and interest under the Collateral Documents to which it is a party and in the Collateral created or granted thereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees that any assignment shall give rise to a direct obligation of Borrowers to the benefit assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the parties and their respective successors and assigns, provided that applicable Commitment. In the Borrower may not assign event Agent or any Lender assigns or otherwise transfer transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), (i) any Lender may at any time pledge the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document, (ii) any Lender may at any time pledge the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to its lender, provided, however, that no such pledge shall permit any assignee lender to exercise any rights or of the pledging Lender under this Agreement and the other Loan Documents other than its right to payment of the Obligations, and no such pledge shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document without the prior written consent and any pledge in violation of the foregoing shall be null and void, and (iii) any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor. The Lenders acknowledge and agree that in order for any assignee Lender or participant to have the benefit of (i) that certain Second Amended and Restated Guarantee between Swissco, as Guarantor, and GE Capital, as Security Agent, dated as of June 30, 2005, as amended, restated, supplemented or otherwise modified from time to time, and (ii) that certain Second Amended and Restated Security Assignment between Swissco, as Assignor, and GE Capital, as Security Agent, dated 30 June 2005, as amended, restated, supplemented or otherwise modified from time to time, the assigning Lender must take such actions as may be required under the laws of Switzerland to ensure that such assignee Lender or participant obtains the benefits of such Guarantee and Security Assignment. The Lenders acknowledge and agree that in order for any assignee Lender or participant to have the benefit of the security granted with respect to certain bank accounts with Austrian banks under (i) the bank account pledge agreement by and among DMD, DIENSTLEISTUNGEN & VERTRIEB FÜR MEDIZIN UND DIAGNOSTIK GMBH, GE Capital as Administrative Agent and all the Lenders and (ii) the bank account pledge agreement by and among VIVA DIAGNOSTIKA - DIAGNOSTISCHE PRODUKTE - GMBH, Agent and the Lenders, and both as amended, supplemented or otherwise modified from time to time, the parties to such agreements must take such actions as may be required under Austrian law to ensure that an assignee Lender or participant obtains the benefits of such security, in particular by complying with the assignment provisions as stipulated in such agreements. In connection with any such assignment or transfer purported participation, Agent shall use reasonable efforts to be made without such consent shall be ineffective. Any Lender may at any time (a) sell make available to any entity participation interests such assigning Lender its local counsel in its Competitive Bid Loans; or (b) sell to those foreign jurisdictions in which any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales such actions may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer all or any part of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any such assignment (as distinguished from the sale of a or participation ) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary .

Appears in 1 contract

Samples: Third Amended and Restated Credit Agreement (Inverness Medical Innovations Inc)

Assignment and Participations. This Agreement Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iv) include a payment to Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower, which shall not be unreasonably withheld or delayed; provided that no such consent shall be binding upon and inure required for an assignment to a Qualified Assignee. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the benefit extent of such assignment, the same rights, benefits and obligations as all other Lenders hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender." In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the parties and their respective successors and assigns, provided that applicable Commitment. In the Borrower may not assign event Agent or any Lender assigns or otherwise transfer transfers all or any part of its the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the Obligations held by it and such Lender's rights or under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective. Document.Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as by a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest under rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for security purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant effective upon delivery of written notice to Borrower of such participation and the participant shall be considered to be a "Lender." Except as set forth in the preceding sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any Federal Reserve Bank participant. Any Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may assign continue to deal solely with the Lender selling a participation as if no such sale had occurred.Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or otherwise Agent and that Lender, 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 its interest the Loans, the Notes or other Obligations owed to such Lender.Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the Loan Documents (y) without assigning or selling Lender to effect any such assignment or participation, including the consent execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Agent Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by them and included in such materials, except that any other Lender, or the Projections delivered by Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) shall only be certified by Borrower as having been prepared by Borrower in compliance with the prior written consent representations contained in Section 3.4(c).Any Lender may furnish any information concerning Credit Parties in the possession of the Agent such Lender from time to time to assignees and if participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8.So long as no Event of Default shall have has occurred and be is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the Borrower (such consents not date of the proposed assignment or sale, the assignee Lender or participant would be subject to be unreasonably withheld capital adequacy or delayed similar requirements under Section 1.16(a), but without increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), withholding taxes in accordance with Section 1.15(a), or has not provided a Certificate of Exemption.Nothing contained in this Section 9 shall require the consent of the other Lenders, any party for Agent or any Lender to assign any other Person provided, however, that of its rights in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee respect of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary Swap Related Reimbursement Obligation.

Appears in 1 contract

Samples: Second Amended and Restated Credit Agreement (Gottschalks Inc)

Assignment and Participations. This Agreement The Borrower consents to any Lender's assignment of, and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender shall (i) require the consent of Agent (which shall not be unreasonably withheld or delayed) and the execution of an assignment agreement substantially in the form attached hereto as Exhibit J and otherwise in form and substance satisfactory to, and acknowledged by, Agent (an "Assignment Agreement"); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The assigning Lender shall be binding upon relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and inure after the date of such assignment. Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the benefit assignee and that the assignee shall be considered to be a "Lender". Agent shall deliver a copy of each executed Assignment Agreement to Borrower. In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the parties and their respective successors and assigns, provided that applicable Commitment. In the Borrower may not assign event Agent or any Lender assigns or otherwise transfer transfers all or any part of its a Note, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective Document. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee Any participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as by a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest under rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for security purposes of Sections 1.17, 1.19, 1.20 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, Borrower shall not have any obligation or duty to any Federal Reserve Bank participant. Any Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may assign continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or otherwise Agent and that Lender, 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 the Loans, the Notes or other Obligations owed to such Lender. (d) Borrower shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Borrower shall certify the correctness, completeness and accuracy of all descriptions of Borrower and its interest under the Loan Documents affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as ( y i) without the consent having been prepared by Borrower in light of the Agent past operations of its business (but including future payments of known contingent liabilities), any other Lender based upon estimates and assumptions stated therein (all of which Borrower believes to be reasonable and fair in light of current conditions and current facts known to Borrower) and (ii) reflecting, or the Borrower to any as of the assigning Lender Closing Date, Borrower's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent good faith and reasonable estimates of its future financial performance and of the Agent other information projected therein for the period set forth therein. (e) A Lender may furnish any information concerning Borrower in the possession of such Lender from time to time to assignees and if participants (including prospective assignees and participants). Each Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 10.17. (f) So long as no Event of Default shall have occurred and be continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the Borrower (such consents not date of the proposed assignment or sale, the assignee Lender or participant would be subject to be unreasonably withheld capital adequacy or delayed similar requirements under Section 1.20(a), but without the consent of the other Lenders increased costs under Section 1.20(c), an inability to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the fund LIBOR Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD" 1.20(d), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located withholding taxes in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary accordance with Section 1.20(b).

Appears in 1 contract

Samples: Artra Group Inc

Assignment and Participations. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors Successors and assigns, provided PROVIDED that the Borrower may not assign or otherwise transfer all or any part of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided PROVIDED, however HOWEVER, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate timing or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer to any Eligible Assignee all or any part of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, or the Borrower to any of the assigning Lender's Affiliates affiliates or to any other Lender or any Eligible Assignee Lender; or (z) with the prior written consent of the Agent and and, if no Event of Default shall have occurred and be continuing, the Borrower Borrower, (such consents not to be unreasonably withheld or delayed ), ) but without the consent of the other Lenders, to any other Person provided person PROVIDED, however HOWEVER, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided PROVIDED, further FURTHER, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Two Thousand Five Hundred Dollars ($ 3,500 2,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower Borrower, either Guarantor or any other Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 9.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary Subsidiary of a Lender, (B) a Subsidiary of a Person person of which a Lender is a Subsidiary, or (C) a Person person of which a Lender is a Subsidiary.

Appears in 1 contract

Samples: investor.costco.com

Assignment and Participations. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors Successors and assigns, provided that the Borrower may not assign or otherwise transfer all or any part of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate timing or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer to any Eligible Assignee all or any part of its interest under the Loan Documents pursuant to an Assignment and Assumption Agreement, substantially in the form of Exhibit D hereto (y) without the consent of the Agent, any other Lender, or the Borrower to any of the assigning Lender's Affiliates affiliates or to any other Lender or any Eligible Assignee Lender; or (z) with the prior written consent of the Agent and and, if no Event of Default shall have occurred and be continuing, the Borrower Borrower, (such consents not to be unreasonably withheld or delayed ), ) but without the consent of the other Lenders, to any other Person Eligible Assignee provided, however, that in either case no such assignment (as distinguished from the sale of a participation) other than an assignment of a Lender's entire interest under the Loan Documents (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee assignee that is not then a Lender or an affiliate thereof. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender . Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement . Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 11.6 shall result in a corresponding adjustment to the selling and purchasing Lenders' Commitments and Percentage Interests . As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary .

Appears in 1 contract

Samples: Micron Electronics Inc

Assignment and Participations. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors Successors and assigns, provided that the Borrower may not assign or otherwise transfer all or any part of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate timing or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer to any Eligible Assignee all or any part of its interest under the Loan Documents pursuant to an Assignment and Assumption Agreement, substantially in the form of Exhibit D hereto (y) without the consent of the Agent, any other Lender, or the Borrower to any of the assigning Lender's Affiliates affiliates or to any other Lender or any Eligible Assignee Lender; or (z) with the prior written consent of the Agent and and, if no Event of Default shall have occurred and be continuing, the Borrower Borrower, (such consents not to be unreasonably withheld or delayed ), ) but without the consent of the other Lenders, to any other Person Eligible Assignee provided, however, that in either case no such assignment (as distinguished from the sale of a participation) other than an assignment of a Lender's entire interest under the Loan Documents (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Two Thousand Five Hundred Dollars ($ 3,500 2,500) for each proposed assignee assignee that is not then a Lender or an affiliate thereof. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender . Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement . Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 11.6 shall result in a corresponding adjustment to the selling and purchasing Lenders' Commitments and Percentage Interests . As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary .

Appears in 1 contract

Samples: Micron Electronics Inc

Assignment and Participations. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors Successors and assigns, provided that the Borrower may not assign or otherwise transfer all or any part of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment Commitment to another bank or financial institution. Such sales may be made without the consent of the Agent, the Borrower or any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower and the Agent with prior written notice of the proposed sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate timing or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer all or any part of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, to another bank or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) financial institution with the prior written consent of the Borrower and Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents which consent will not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person delayed provided, however, that in either case no such any assignment (as distinguished from the sale of by a participation) (i) shall be made in an amount Lender which assigns less than Ten all of its Commitment shall assign at least Five Million Dollars ($ 10,000,000 5,000,000) nor (ii) of its Commitment and provided further that in the case of an assignment or transfer by any Lender to any affiliate of such Lender, the Borrower's consent shall not be required and the Agent's consent shall be made if after giving effect required only as to the form of the documents under which such assignment the aggregate amount of the Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee or transfer is made). The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 9.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Commitments and Percentage Interests . As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary .

Appears in 1 contract

Samples: Amended and Restated Revolving Credit Agreement (Hollywood Entertainment Corp)

Assignment and Participations. This Agreement shall be binding upon upon, and inure to the benefit of of, the parties Borrower, the Agent, the Lenders and their respective successors and assigns, provided except that the Borrower may not assign any of its rights or otherwise transfer all obligations hereunder without the prior written consent of the Lenders. In giving any consent as aforesaid to any assignment by the Borrower, the Lenders shall be entitled to impose such conditions as they shall deem advisable. Any Lender shall be entitled to assign the whole or any part of its rights or obligations hereunder under this Agreement or under grant participation(s) in the Credit Facility to any other Loan Document without subsidiary or holding company of such Lender, to any subsidiary company of any thereof or, with the prior written consent of the Borrower and the Agent (in each case not to be unreasonably withheld) to any other bank or financial institution whatsoever and all the Lenders, and such Lender shall forthwith give notice of any such assignment or transfer purported participation to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer all or any part of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing the Borrower, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided, however, that (a) except as provided by Section 16, in either case no such event Den norske Bank ASA shall remain the agent, (b) any such assignment (as distinguished from the sale of a participation) (i) or participation shall be made in an a minimum amount less than of Ten Million Dollars ($10,000,000 ), (c) nor any such assignment to a Lender is to be made pursuant to an Assignment and Assumption Agreement substantially in the form of Exhibit 5 hereto, ( ii d) Den norske Bank ASA's Commitment shall be made if after giving effect to such assignment the aggregate amount not less than twenty-five percent (25%) of the Loans Committed Amount and unused Commitment of the assigning Lender would be less than Ten Million Dollars ( $10,000,000 e) except as provided in Section 14.3 and provided, further, that for such reasonable legal fees and expenses incurred in connection with any the documentation of such an assignment ( as distinguished from but not participation), no such assignment or participation will result in any additional costs to, or additional material requirements on, the sale Borrower. The Borrower will take all reasonable actions requested by the Lenders to effect such assignment, including, without limitation, the execution of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Assignment and Assumption Agreement . Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary .

Appears in 1 contract

Samples: Agreement (Seacor Smit Inc)

Assignment and Participations. This Agreement shall be binding upon upon, and inure to the benefit of of, the parties Borrower, the Agent, the Lenders and their respective successors and assigns, provided except that the Borrower may not assign any of its rights or otherwise transfer all obligations hereunder without the prior written consent of the Lenders. In giving any consent as aforesaid to any assignment by the Borrower, the Lenders shall be entitled to impose such conditions as they shall deem advisable. Any Lender shall be entitled to assign the whole or any part of its rights or obligations hereunder under this Agreement or under grant participation(s) in the Credit Facility to any other Loan Document without subsidiary or holding company of such Lender, to any subsidiary company of any thereof or, with the prior written consent of the Borrower and the Agent (in each case not to be unreasonably withheld) to any other bank or financial institution whatsoever and all the Lenders, and such Lender shall forthwith give notice of any such assignment or transfer purported participation to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer all or any part of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing the Borrower, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided, however, that (a) except as provided by Section 16, in either case no such event Den norske Bank ASA shall remain the agent, (b) any such assignment (as distinguished from the sale of a participation) (i) or participation shall be made in an a minimum amount less than of Ten Million Dollars ($10,000,000 ), (c) nor any such assignment to a Lender is to be made pursuant to an Assignment and Assumption Agreement substantially in the form of Exhibit 5 hereto, ( ii d) Den norske Bank ASA's Commitment shall be made if after giving effect to such assignment the aggregate amount not less than twenty-five percent (25%) of the Loans Committed Amount and unused Commitment of the assigning Lender would be less than Ten Million Dollars ( $10,000,000 e) except as provided in Sections 14.2 and provided, further, that for such reasonable legal fees and expenses incurred in connection with any the documentation of such an assignment ( as distinguished from but not participation), no such assignment or participation will result in any additional costs to, or additional material requirements on, the sale Borrower. The Borrower will take all reasonable actions requested by the Lenders to effect such assignment, including, without limitation, the execution of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Assignment and Assumption Agreement . Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary .

Appears in 1 contract

Samples: Agreement (Seacor Smit Inc)

Assignment and Participations. This a) Any Lender may assign at any time or times, any of the Loan Documents, any Commitment or of any portion thereof or interest therein, including, without limitation, any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not, with Borrower's consent which shall not be unreasonably withheld or delayed; provided that so long as any Event of Default shall have occurred and be continuing Borrower's consent shall not be required. Any assignment by a Lender shall (i) require the consent of Agent which shall not be unreasonably withheld or delayed and the execution of a Lender Addition Agreement in form and substance satisfactory to Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and the Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; and (iv) include a payment by the assigning Lender to the Agent of an assignment fee of $3,000. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The assigning Lender shall be binding upon relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and inure after the date of such assignment. Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the benefit assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the parties and their respective successors and assigns, provided that Commitment. In the Borrower may not assign event Agent or any Lender assigns or otherwise transfer transfers all or any part of a Note, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes being assigned. (b) Borrower consents to any Lender's sale of a participation, at any time or times, in all or part of its Commitment. Any sale of a participation by a Lender of all or any part of its rights Commitments shall be made with the understandings that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, except as provided in the following sentence, and that the holder of any such participation shall not be entitled to require such Lender to take or obligations omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or under interest rate or Fees payable with respect to, any other Loan Document without the prior written consent in which such holder participates, (ii) any extension of the Agent and all final scheduled maturity date of the Lenders principal amount of any Loan in which such holder participates, and (iii) any such assignment release of all or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent substantially all of the Agent, any Collateral (other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights than in accordance with instructions received from its participant (except the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that the participant's consent can be required for proposed changes a participation shall give rise to a direct obligation of Borrower to the timing, rate participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence neither Borrower nor any Credit Party shall have any obligation or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes duty to any Federal Reserve Bank participant. Any Neither Agent nor any Lender may assign or otherwise transfer all or (other than the Lender selling a participation) shall have any part of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, or the Borrower duty to any of the assigning Lender's Affiliates or participant and may continue to any other Lender or any Eligible Assignee; or (z) deal solely with the prior written consent of the Agent and Lender selling a participation as if no such sale had occurred. (c) So long as no Event of Default shall have occurred and be continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the Borrower (such consents not date of the proposed assignment or sale, the assignee Lender or participant would be subject to be unreasonably withheld capital adequacy or delayed similar requirements under Section 1.16(a), but without the consent of the other Lenders increased costs under Section 1.16(b), an inability to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the fund LIBOR Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD" 1.16(c), or a political subdivision withholding taxes in accordance with Section 1.16(d). (d) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, 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 the Loans, the Notes or other Obligations owed to such country Lender. (e) Borrower shall assist any Lender permitted to sell assignments under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested, and the participation of management in meetings with, potential assignees at Borrower's headquarters. Borrower shall certify the correctness, completeness and accuracy of all descriptions of Borrower and its affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located been prepared by Borrower in compliance with the representations contained in Section 3.4(c). (f) A Lender may furnish any information concerning Borrower in the United States possession of America; such Lender from time to time to assignees and participants ( iii including prospective assignees and participants). Each Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained herein. (g) a Person If (a) GE Capital assigns its Commitment or sells participations in its Commitment so that its Commitment, net of participations sold by it, is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary less than $30,000,000, or ( C b) a Person of which resigns as Agent and is not replaced as Agent by a Lender is a Subsidiary reasonably acceptable to Borrower, Borrower may, within one hundred eighty (180) days thereafter terminate the Commitments, prepay the Revolving Loans, Swing Line Loan and all other Obligations in full and cash collateralize all outstanding Letter of Credit Obligations and Eligible Trade L/C Obligations, without payment of any prepayment fee as to the Pro Rata Share of GE Capital.

Appears in 1 contract

Samples: Wilsons the Leather Experts Inc

Assignment and Participations. This Agreement a) Borrowers hereby consent to any Lender's assignment of, and/or sale of participations in, at any time or times, any of the Loan Documents, any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender shall (i) require the consent of Agent (which shall not be unreasonably withheld or delayed) and the execution of an assignment agreement (an "Assignment Agreement") substantially in the from attached hereto as Exhibit 9.1(a) and otherwise in form and substance satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Revolving Credit Advances to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $2,000,000 and, after giving effect to any such partial assignment, the assigning Lender shall have retained Commitments in an amount at least equal to $2,000,000; and (iv) include a payment by the assigning Lender to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The assigning Lender shall be binding upon relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and inure after the date of such assignment. Each Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrowers to the benefit assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Revolving Credit Advances hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the parties and their respective successors and assigns, provided that applicable Commitment. In the Borrower may not assign event Agent or any Lender assigns or otherwise transfer transfers all or any part of its a Revolving Note, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Revolving Notes in exchange for the Revolving Notes being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective Document. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee Any participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as by a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its Commitments shall be in an amount at least equal to $2,000,000, and with the understanding that all amounts payable by Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest under rate or Fees payable with respect to, any Revolving Credit Advance in which such holder participates, (ii) any extension of the scheduled amortization, if applicable, of the principal amount of any Revolving Credit Advance in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents Documents). Solely for security purposes of Sections 1.12, 1.14, 1.15 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrowers to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence no Borrower or Credit Party shall have any obligation or duty to any Federal Reserve Bank participant. Any None of Agent, Collateral Agent or any Lender (other than the Lender selling a participation) shall have any duty to any participant and may assign continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or otherwise Agent and that Lender, 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 its interest the Revolving Loan, the Revolving Notes or other Obligations owed to such Lender. (d) Borrowers shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the Loan Documents (y) without assigning or selling Lender to effect any such assignment or participation, including the consent execution and delivery of the any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Borrowers shall certify the correctness, completeness and accuracy of all descriptions of Borrowers and their affairs contained in any selling materials provided by them and all other Lender information provided by them and included in such materials, or the Borrower to except that any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the prior written consent representations contained in Section 3.4(b). (e) A Lender may furnish any information concerning Borrowers in the possession of the Agent such Lender from time to time to assignees and if no Event of Default shall have occurred participants (including prospective assignees and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed participants) , but without the consent of the other Lenders, to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning . Each Lender shall pay obtain from assignees or participants confidentiality covenants substantially equivalent to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, those contained in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary 11.8.

Appears in 1 contract

Samples: E Agreements (Liposome Co Inc)

Assignment and Participations. This Agreement a) The Credit Parties signatory hereto consent to any Lender's assignment of, and/or sale of participations in, at any time or times, any of the Loans, Loan Documents, any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender shall (i) require the consent of Agent and Borrower (which, in each case, shall not be unreasonably withheld or delayed) and the execution of an assignment agreement (an "Assignment Agreement" substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance satisfactory to, and acknowledged by, Agent, provided, however, that such consent of Borrower shall not be required if a Default or Event of Default shall have occurred and be continuing or for any assignment by a Lender to another Lender; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in 49 57 an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Lender shall have retained Commitments in an amount at least equal to $7,500,000; and (iv) include a payment by the assigning Lender to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The assigning Lender shall be binding upon relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and inure after the date of such assignment. Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the benefit assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the parties and their respective successors and assigns, provided that applicable Commitment. In the Borrower may not assign event Agent or any Lender assigns or otherwise transfer transfers all or any part of its a Note, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective Document. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee Any participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as by a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its Commitments shall be in an amount at least equal to $5,000,000, and with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest under rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for security purposes of Sections 1.12, 1.14, 1.15 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any Federal Reserve Bank participant. Any Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may assign continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or otherwise Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or 50 58 granting of participation in, all or any part of its interest the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the Loan Documents (y) without assigning or selling Lender to effect any such assignment or participation, including the consent execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Agent Credit Parties and their affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any other Lender, or the Projections delivered by Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) shall only be certified by Borrower as having been prepared by Borrower in compliance with the prior written consent representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning Borrower in the possession of the Agent such Lender from time to time to assignees and if participants (including prospective assignees and participants). Each Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default shall have occurred and be continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the Borrower (such consents not date of the proposed assignment or sale, the assignee Lender or participant would be subject to be unreasonably withheld capital adequacy or delayed similar requirements under Section 1.15(a), but without the consent of the other Lenders increased costs under Section 1.15(b), an inability to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the fund LIBOR Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD" 1.15(c), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located withholding taxes in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary accordance with Section 1.15(d).

Appears in 1 contract

Samples: Renaissance Cosmetics Inc /De/

Assignment and Participations. This Agreement a) The Credit Parties signatory hereto consent to any Lender's assignment of, and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender shall (i) require the consent of Administrative Agent and Bon-Ton (which shall not be unreasonably withheld or delayed) and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance satisfactory to, and acknowledged by, Administrative Agent, provided, however, that the consent of Bon-Ton shall not be required for any assignment by a Lender if at the time of such assignment a Default or Event of Default shall have occurred and be continuing; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Administrative Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; and (iv) include a payment to Administrative Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The assigning Lender shall be binding upon relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and inure after the date of such assignment. Each Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrowers to the benefit assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the parties and their respective successors and assigns, provided that applicable Commitment. In the Borrower may not assign event Administrative Agent or any Lender assigns or otherwise transfer transfers all or any part of its a Note, Administrative Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Administrative Agent or such Lender, execute new Notes in exchange for the Notes being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective Document. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee Any participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as by a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its Commitments shall be in an amount at least equal to $5,000,000, and with the understanding that all amounts payable by Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest under rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for security purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrowers to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence no Borrower or Credit Party shall have any obligation or duty to any Federal Reserve Bank participant. Any No Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may assign continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or otherwise any Agent and that Lender, 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 its interest the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested not inconsistent with the terms of the Loan Documents (y) without and, if requested by Administrative Agent, the consent preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Agent Credit Parties and their affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any other Lender, or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the prior written consent representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning Credit Parties in the possession of the Agent such Lender from time to time to assignees and if participants (including prospective assignees and participants). Each Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default shall have occurred and be continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the Borrower (such consents not date of the proposed assignment or sale, the assignee Lender or participant would be subject to be unreasonably withheld capital adequacy or delayed similar requirements under Section 1.16(a), but without the consent of the other Lenders increased costs under Section 1.16(b), an inability to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the fund LIBOR Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD" 1.16(c), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located withholding taxes in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary accordance with Section 1.16(d).

Appears in 1 contract

Samples: Bon Ton Stores Inc

Assignment and Participations. This Agreement a) The Credit Parties signatory hereto consent to any Lender's assignment of, and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender shall (i) require the consent of Agent (which shall not be binding upon unreasonably withheld or delayed), and inure if not to another Lender or any Affiliate of any Lender, the benefit consent of the parties and their respective successors and assigns Borrower Representative (which consent shall not be unreasonably withheld or delayed, provided that no such consent shall be required so long as any Event of Default has occurred and is continuing and the execution of an assignment agreement (an "ASSIGNMENT AGREEMENT") substantially in the from attached hereto as EXHIBIT 9.1(a) and otherwise in form and substance satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this SECTION 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower may hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not assign joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfer transfers all or any part of its a Note, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes being assigned. Notwithstanding the foregoing provisions of this SECTION 9.1(a), any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank or, in the case of a Term Lender that is an investment fund, to another investment fund managed by the same investment advisor as the investment advisor executing this Agreement or an Assignment Agreement on behalf of that Term Lender; PROVIDED, HOWEVER, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective Document. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee Any participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as by a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest under rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents 59 or the other Loan Documents). Solely for security purposes of SECTIONS 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrowers to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence no Borrower or Credit Party shall have any obligation or duty to any Federal Reserve Bank participant. Any Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may assign continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this SECTION 9.1, no Lender shall, as between Borrowers and that Lender, or otherwise Agent and that Lender, 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 its interest the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this SECTION 9.1 as reasonably required to enable the Loan Documents (y) without assigning or selling Lender to effect any such assignment or participation, including the consent execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Agent Credit Parties and their affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any other Lender, or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the prior written consent representations contained in SECTION 3.4(c). (e) A Lender may furnish any information concerning Credit Parties in the possession of the Agent such Lender from time to time to assignees and if participants (including prospective assignees and participants). Each Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in SECTION 11.8. (f) So long as no Event of Default shall have occurred and be continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the Borrower (such consents not date of the proposed assignment or sale, the assignee Lender or participant would be subject to be unreasonably withheld capital adequacy or delayed similar requirements under SECTION 1.16(a), but without the consent of the other Lenders increased costs under SECTION 1.16(b), an inability to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the fund LIBOR Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD" SECTION 1.16(c), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located withholding taxes in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary accordance with SECTION 1.16(d).

Appears in 1 contract

Samples: Credit Agreement (Recycling Industries Inc)

Assignment and Participations. This Agreement a) The Credit Parties signatory hereto consent to any Lender's assignment of, and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations, Litigation L/C Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender shall (i) require the consent of Agent (which shall not be unreasonably 56 64 withheld or delayed) and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; and (iv) include a payment to Agent by such assigning Lender of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The assigning Lender shall be binding upon relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and inure after the date of such assignment. Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the benefit assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the parties and their respective successors and assigns, provided that applicable Commitment. In the Borrower may not assign event Agent or any Lender assigns or otherwise transfer transfers all or any part of its a Note, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective Document. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee Any participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as by a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its Commitments shall be in an amount at least equal to $5,000,000, and with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest under rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for security purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence neither Borrower nor any Credit Party shall have any obligation or duty to any Federal Reserve Bank participant. Any Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may assign continue to deal solely with the Lender selling a participation as if no such sale had occurred. 57 65 (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or otherwise Agent and that Lender, 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 its interest the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the Loan Documents (y) without assigning or selling Lender to effect any such assignment or participation, including the consent execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Agent Credit Parties and their affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any other Lender, or the Projections delivered by Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) shall only be certified by Borrower as having been prepared by Borrower in compliance with the prior written consent representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning Borrower in the possession of the Agent such Lender from time to time to assignees and if participants (including prospective assignees and participants). Each Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default shall have occurred and be continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the Borrower (such consents not date of the proposed assignment or sale, the assignee Lender or participant would be subject to be unreasonably withheld capital adequacy or delayed similar requirements under Section 1.16(a), but without the consent of the other Lenders increased costs under Section 1.16(b), an inability to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made in an amount less than Ten Million Dollars ($10,000,000) nor (ii) shall be made if after giving effect to such assignment the aggregate amount of the fund LIBOR Loans and unused Commitment of the assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the benefits of this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in conformance with the terms of this Section 10.05 shall result in a corresponding adjustment to the selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD" 1.16(c), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located withholding taxes in the United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary accordance with Section 1.16(d).

Appears in 1 contract

Samples: Code Alarm Inc