Assignment; Participation. This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of each Bank (and any attempted assignment or transfer without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants to the extent provided in this Section 12.05 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Bank may, without the consent of the Borrower, the Administrative Agent or the Issuing Bank, at any time grant to one or more banks or other institutions (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”) participating interests in its Loan (each a “Participation”). In the event of any such grant by a Bank of a Participation to a Participant, whether or not Borrower or Administrative Agent was given notice, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations hereunder. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of: (i) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”; (ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment; and (iii) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment. Such assignments shall be subject to the following additional conditions: (1) except in the case of an assignment to a Bank or an Affiliate of a Bank or an assignment of the entire remaining amount of the assigning Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing; (2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement; (3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500; (4) the Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and (5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:
Appears in 1 contract
Sources: Revolving Loan Agreement (Avalonbay Communities Inc)
Assignment; Participation. This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of each Bank (and any attempted assignment or transfer without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants to the extent provided in this Section 12.05 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Bank may, without the consent of of, or notice to, the Borrower, the Administrative Agent or the Issuing Bank, at any time grant to one or more banks or other institutions (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”) participating interests in its Loan (each a “Participation”). In the event of any such grant by a Bank of a Participation to a Participant, whether or not Borrower or Administrative Agent was given notice, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations hereunder. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, protection and increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); , provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(i) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assigneeassignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment to an Assignee assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment; and
(iii) the Issuing BankBank and the Swing Lender, provided that no consent of the Issuing Bank or the Swing Lender shall be required for an assignment of any Loan Commitment to an Assignee assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Bank or an Affiliate of a Bank or an assignment of the entire remaining amount of the assigning Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;
(4) the Assigneeassignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information in accordance with the Assigneeassignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:.
Appears in 1 contract
Sources: Revolving Loan Agreement (Avalonbay Communities Inc)
Assignment; Participation. This Agreement shall be binding upon, and shall inure to the benefit of, each Borrower, TRG, Administrative Agent, the Banks and their respective successors and permitted assigns. No Borrower Party may not assign or transfer its rights or obligations hereunder without the prior written consent of each hereunder. No Bank (and any attempted assignment may assign or transfer without such consent shall be null and void). Nothing participate its Loan or its interest in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants to the extent provided Agreement except as set forth in this Section 12.05 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement12.05. Any Bank may, without the consent of the Borrower, the Administrative Agent or the Issuing Bank, may at any time grant to one or more banks or other institutions (other than a natural person (or a holding companyeach, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”) participating interests in its Loan (each each, a “Participation”)) subject, provided there exists no Event of Default, to Borrowers’ consent, which consent shall not be unreasonably withheld or delayed. In the event of any such grant by a Bank of a Participation to a ParticipantParticipation, whether or not Borrower Borrowers or Administrative Agent was given notice, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower Borrowers and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations hereunder. Any agreement pursuant to which any Bank may grant such a participating interest Participation shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower Borrowers hereunder and under any other Loan Document Document, including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided provided, however, that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in clauses (1) through (6) in the first proviso to paragraph of Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as Bank may at any Bank with respect time assign to the yield protection, increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans bank or other obligations under the Loan Documents institution (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all with the consent of Administrative Agent and, so long as no Event of Default exists, of Borrowers, which consents shall not be unreasonably withheld or delayed, all, or a portion proportionate part of all, of its rights and obligations under this Agreement (including all or a portion of and its Loan Commitment Note(s), and such Assignee shall assume rights and obligations, pursuant to an Assignment and Assumption Agreement executed by such Assignee and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(i) the Borrowerassigning Bank, provided that no that, in each case, after giving effect to such assignment, the Assignee’s Loan Commitment, and, in the case of a partial assignment, the assigning Bank’s Loan Commitment, each will be equal to or greater than $10,000,000. No consent of the Borrower shall be required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent of the Borrowers or Administrative Agent shall be required for an any assignment of any Loan Commitment to an Assignee a bank or other institution that is already a Bank with a Loan Commitment immediately prior to giving effect to Bank. Additionally, no such assignment; and
(iiiconsent(s) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an the assignment by a Bank to one or more banks or other institutions which are Affiliates of such Bank, but in the event of any such assignment without such consent(s) the assigning Bank shall not be released of its obligations with respect to the assigned Loan Commitment Commitment. Upon (i) execution and delivery of such instrument, (ii) payment by such Assignee to the Bank of an amount equal to the purchase price agreed between the Bank and such Assignee that is and (iii) payment by such Assignee to Administrative Agent of a fee, for Administrative Agent’s own account, in the amount of $4,500 and payment of the reasonable legal fees necessary for the preparation and execution of a Note and other documents needed to effectuate such assignment, such Assignee shall be a Bank Party to this Agreement and shall have all the rights and obligations of a Bank as set forth in such Assignment and Assumption Agreement, and the assigning Bank shall be released from its obligations hereunder to a corresponding extent (except as otherwise set forth above), and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this paragraph, substitute Notes shall be issued to the assigning Bank (in the case of a partial assignment) and Assignee by the applicable Borrowers, in exchange for the return of the original Note(s). The obligations evidenced by such substitute Notes shall constitute “Obligations” for all purposes of this Agreement and the other Loan Documents and shall be secured by the Mortgages. In connection with the applicable Borrower’s execution of substitute Notes as aforesaid, such Borrower shall deliver to Administrative Agent such evidence of the due authorization, execution and delivery of the substitute Notes and any related documents as Administrative Agent may reasonably request. If the Assignee is not incorporated under the Laws of the United States or a state thereof, it shall, prior to the first date on which interest or fees are payable hereunder for its account, deliver to Borrowers and Administrative Agent certification as to exemption from deduction or withholding of any United States federal income taxes in accordance with Section 10.13. No Bank may assign its rights hereunder or any part thereof to any Borrower or any Affiliate of any Borrower. Any Bank may at any time freely assign all or any portion of its rights under this Agreement and its Notes to a Federal Reserve Bank. No such assignment shall release the transferor Bank from its obligations hereunder. Each Borrower recognizes that in connection with a Bank’s selling of Participations or making of assignments, any or all documentation, financial statements, appraisals and other data, or copies thereof, relevant to any Borrower or the Loans may be exhibited to and retained by any such Participant or Assignee or prospective Participant or Assignee. In addition, such documentation etc. may be exhibited to and retained by Affiliates of a Bank. In connection with a Bank’s delivery of any financial statements and appraisals to any such Participant or Assignee or prospective Participant or Assignee, such Bank shall also deliver its standard confidentiality statement indicating that the same are delivered on a confidential basis. Each Borrower agrees to provide all assistance reasonably requested by a Bank to enable such Bank to sell Participations or make assignments of its Loan Commitment immediately prior as permitted by this Section. Each Bank agrees to giving provide the applicable Borrowers with notice of all Participations sold by such Bank. Notwithstanding anything to the contrary contained herein, the pledge or assignment by a Bank (the “Transferring Bank”) of all or any part of its interest in the Notes and this Agreement (the “Transferred Interest”) in accordance with the terms of this Agreement to a trustee, administrator or receiver or their respective nominees, collateral agents or collateral trustees (a “Security Trustee”) of a mortgage pool securing covered mortgage bonds issued by an eligible German bank (Pfandbriefbanken) permitted to issue covered mortgage bonds (Hypothekenpfandbriefe) under German bond law (Pfandbriefgesetz 2005, as the same may be amended or modified and in effect from time to time, and/or any substitute or successor legislation thereto) (any such pledge or assignment. Such assignments , a “Pfandbrief Transfer”) shall be permitted subject to the following additional conditions:
(1a) Any further pledge or assignment by the Security Trustee of the Transferred Interest or any acquisition of the Transferred Interest by any Person other than the Security Trustee (each, an “Additional Transfer”) shall require the prior written consent of Administrative Agent and Borrowers to the extent provided by the terms of this Agreement.
(b) Neither the Pfandbrief Transfer, nor any foreclosure on the Transferred Interest, nor any Additional Transfer, shall result in the release of the Transferring Bank from any of its obligations under this Agreement or the other Loan Documents (and the Transferring Bank shall remain responsible for all of the obligations originally incurred by it under this Agreement and the other Loan Documents with respect to the Transferred Interest), except, in the case of any such Additional Transfer that complies with the terms and provisions of the Loan Documents pursuant to which the Transferring Bank would be released from its obligations accruing from and after the Additional Transfer, for the obligations accruing from and after such Additional Transfer. Consequently, notwithstanding the Pfandbrief Transfer, nor any foreclosure on the Transferred Interest, nor any Additional Transfer, the Transferring Bank shall remain obligated to fund its share of all advances of the Loans, all expense reimbursements, all indemnification payments and all other amounts originally required to be funded by the Transferring Bank under the Loan Documents to the same extent as if no Pfandbrief Transfer, foreclosure on the Transferred Interest, or any Additional Transfer had occurred (except if such Additional Transfer complies with the terms and provisions of the Loan Documents pursuant to which the Transferring Bank would be released from its obligations accruing from and after the Additional Transfer, in which case the Transferring Bank shall be released from any such obligations accruing from and after such Additional Transfer in accordance with the terms of the Loan Documents).
(c) Notwithstanding the Pfandbrief Transfer, or any foreclosure on the Transferred Interest, or any Additional Transfer, the Transferring Bank (and not the Security Trustee or any other transferee or assignee) shall have the exclusive right and power to exercise any and all approval, consent and voting rights under the Loan Documents that relate to the Transferred Interest, except that, in the case of an Additional Transfer that complies with the terms and provisions of the Loan Documents pursuant to which the Transferring Bank would be released from its obligations accruing from and after the Additional Transfer, the transferee or assignee shall succeed to the rights and powers originally held by the Transferring Bank to exercise any and all approval, consent and voting rights under the Loan Documents with respect to the Transferred Interest.
(d) The interest acquired by the Security Trustee pursuant to the Pfandbrief Transfer or any foreclosure on the Transferred Interest, and the interest acquired by any other Person pursuant to any Additional Transfer, shall remain subject to all rights, defenses, offsets, claims and counterclaims which Administrative Agent, any Bank or any Borrower may have against the Transferring Bank, except, in the case of an Additional Transfer that complies with the terms and provisions of the Loan Documents pursuant to which the Transferring Bank would be released from its obligations accruing from and after the Additional Transfer, for any rights, defenses, offsets, claims and counterclaims which Administrative Agent, any Bank or any Borrower may have against the Transferring Bank as a result of any acts or occurrences from and after the date of such Additional Transfer.
(e) Notwithstanding the Pfandbrief Transfer, or any foreclosure on the Transferred Interest, or any Additional Transfer, Administrative Agent, any Bank and any Borrower shall be entitled to deal exclusively with the Transferring Bank as the “Bank” with respect to the Transferred Interest, except in the case of an assignment to a Bank or an Affiliate of a Bank or an assignment of Additional Transfer which complies with the entire remaining amount of the assigning Bank’s Loan Commitment or Loans, the amount terms and provisions of the Loan Commitment Documents pursuant to which the Transferring Bank would be released from its obligations accruing from and after the Additional Transfer, in which case Administrative Agent, any Bank or Loans any Borrower shall be entitled to deal with the transferee or assignee of the assigning Bank subject to each such assignment Transferred Interest.
(determined as f) None of the date Pfandbrief Transfer, nor any foreclosure on the Assignment and Acceptance Transferred Interest, nor any Additional Transfer shall affect or change in any way any of the rights or obligations with respect to such assignment is delivered the Transferred Interest. Without limiting the foregoing, any rights or claims of the pledgee or transferee of the Transferred Interest against Administrative Agent shall be subject to the same limitations and exculpations as are set forth with respect to the rights and claims of a “Bank” against Administrative Agent) Agent contained herein, and shall not in any event be less greater than $5,000,000 unless each of the Borrower and rights or claims that could have been asserted by the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;
(4) the Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information Transferring Bank in accordance with the Assignee’s compliance procedures and applicable lawsLoan Documents with respect to the Transferred Interest had such Pfandbrief Transfer, including Federal and state securities laws; andforeclosure on the Transferred Interest or Additional Transfer not occurred.
(5g) no such assignment The pledgee or transferee of any interest pursuant to the Pfandbrief Transfer, any foreclosure on the Transferred Interest or any Additional Transfer shall be made bound by the provisions of this Agreement as if it were a “Bank” hereunder.
(Ah) to the The Transferring Bank shall promptly reimburse Administrative Agent and/or Borrowers for any and all out-of-pocket costs and expenses incurred by Administrative Agent and/or any Borrower or any in connection with Administrative Agent’s consideration of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any request for the consent set forth herein and in connection with the negotiation and documentation of the foregoing Persons described in this clause (B)same, or (C) to a natural person (or a holding companyincluding, investment vehicle or trust forwithout limitation, or owned reasonable legal fees and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:expenses.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (Taubman Centers Inc)
Assignment; Participation. This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of each Bank (and any attempted assignment or transfer without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants to the extent provided in this Section 12.05 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Bank may, without the consent of the Borrowerof, or notice to, the Administrative Agent Borrower or the Issuing BankAdministrative Agent, at any time grant to one or more banks or other institutions (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”) participating interests in its Loan (each a “Participation”). In the event of any such grant by a Bank of a Participation to a Participant, whether or not Borrower or Administrative Agent was given notice, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations hereunder. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, protection and increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank Lender granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned withheld or delayed) of:
(i) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assigneeassignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;and
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment or Loan to an Assignee assignee that is (A) a Bank with a Loan Commitment holding Loans immediately prior to giving effect to such assignment; and
, (iiiB) the Issuing an Affiliate of such Bank, provided that no consent of the Issuing Bank shall be required for or (C) an assignment of any Loan Commitment to an Assignee that is a Bank Approved Fund with a Loan Commitment immediately prior to giving effect respect to such assignmentBank. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Bank or an Affiliate of a Bank or any Approved Fund or an assignment of the entire remaining amount of the assigning Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 1,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement, except that this clause (2) shall not prohibit any Bank from assigning all or a portion of its rights and obligations among separate tranches on a non-pro rata basis;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;; and
(4) the Assigneeassignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information in accordance with the Assigneeassignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:.
Appears in 1 contract
Assignment; Participation. This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of each Bank (and any attempted assignment or transfer without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants to the extent provided in this Section 12.05 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Bank may, without the consent of the Borrower, the Administrative Agent or the Issuing Bank, at any time grant to one or more banks or other institutions (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”) participating interests in its Loan (each a “Participation”). In the event of any such grant by a Bank of a Participation to a Participant, whether or not Borrower or Administrative Agent was given notice, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations hereunder. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, protection and increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(i) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assigneeassignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment to an Assignee assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment; and
(iii) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of any Loan Commitment to an Assignee assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Bank or an Affiliate of a Bank or an assignment of the entire remaining amount of the assigning Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;
(4) the Assigneeassignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information in accordance with the Assigneeassignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:.
Appears in 1 contract
Sources: Revolving Loan Agreement (Avalonbay Communities Inc)
Assignment; Participation. (a) This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Except as provided in Section 7.01, the Borrower may not assign or transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written consent of each Bank all the Banks (and any attempted such assignment or transfer without such consent shall be null and void). Nothing in this Agreement.
(b) Subject to Section 12.05(e), expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants prior to the extent provided in this Section 12.05 andoccurrence of an Event of Default, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Bank may, without the consent of the Borrower, the Administrative Agent or the Issuing Bank, may at any time time, grant to an existing Bank or one or more banks banks, finance companies, insurance companies or other institutions entities (other a "Participant") in minimum amounts of not less than a natural person $5,000,000 (or a holding company, investment vehicle or trust for, or owned and operated for any lesser amount in the primary benefit case of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”participations to an existing Bank) participating interests in its Loan Commitment or any or all of its Loans. After the occurrence and during the continuance of an Event of Default, any Bank may at any time grant to any Person in any amount (each also a “Participation”"Participant"), participating interests in its Loan Commitment or any or all of its Loans. Any participation made during the continuation of an Event of Default shall not be affected by the subsequent cure of such Event of Default. In the event of any such grant by a Bank of a Participation participating interest to a Participant, whether or not upon notice to Borrower or and Administrative Agent was given noticeAgent, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s 's rights and obligations hereunderunder this Agreement. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to clause (1), (2), (3), (4), (5), (6) or (7) of Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(i) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment; and
(iii) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Bank or an Affiliate of a Bank or an assignment final proviso of the entire remaining amount first sentence of the assigning Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;
(4) the Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:12.
Appears in 1 contract
Assignment; Participation. This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of each Bank (and any attempted assignment or transfer without such consent shall be null and void). Nothing void).Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants to the extent provided in this Section 12.05 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks Agent or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Bank may, without the consent of the Borrower, Borrower or the Administrative Agent or the Issuing BankAgent, at any time grant to one or more banks or other institutions (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”) participating interests in its Loan (each a “Participation”). In the event of any such grant by a Bank of a Participation to a Participant, whether or not Borrower or Administrative Agent was given notice, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower ▇▇▇▇▇▇▇▇ and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations hereunder. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, and increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(i) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment or Loan to an Assignee that is (A) a Bank with a Loan Commitment holding Loans immediately prior to giving effect to such assignment; and
, (iiiB) the Issuing an Affiliate of such Bank, provided that no consent of the Issuing Bank shall be required for or (C) an assignment of any Loan Commitment to an Assignee that is a Bank Approved Fund with a Loan Commitment immediately prior to giving effect respect to such assignmentBank. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Bank or an Affiliate of a Bank or any Approved Fund or an assignment of the entire remaining amount of the assigning Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement, except that this clause (2) shall not prohibit any Bank from assigning all or a portion of its rights and obligations among separate tranches of Loans on a non-pro rata basis;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;
(4) the Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties Related Parties or its securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:.
Appears in 1 contract
Assignment; Participation. (a) This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Neither the Borrower nor the General Partner may not assign or transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written consent of each Bank all the Banks (and any attempted such assignment or transfer without such consent shall be null and void). Nothing in this Agreement.
(b) Subject to Section 12.05(e), expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants prior to the extent provided in this Section 12.05 andoccurrence of an Event of Default, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Bank may, without the consent of the Borrower, the Administrative Agent or the Issuing Bank, may at any time time, grant to an existing Bank or one or more banks banks, finance companies, insurance companies or other institutions entities (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”) in minimum amounts of not less than $5,000,000 (or any lesser amount in the case of participations to an existing Bank) participating interests in its Loan Commitment or any or all of its Loans. After the occurrence and during the continuance of an Event of Default, any Bank may at any time grant to any Person in any amount (each also a “ParticipationParticipant”), participating interests in its Loan Commitment or any or all of its Loans. Any participation made during the continuation of an Event of Default shall not be affected by the subsequent cure of such Event of Default. In the event of any such grant by a Bank of a Participation participating interest to a Participant, whether or not upon notice to Borrower or and Administrative Agent was given noticeAgent, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations hereunderunder this Agreement. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(i) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment; and
(iii) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Bank or an Affiliate of a Bank or an assignment of the entire remaining amount of the assigning Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;
(4) the Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:
Appears in 1 contract
Assignment; Participation. (a) This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Except as provided in Section 7.01, the Borrower may not assign or transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written consent of each Bank all the Banks (and any attempted such assignment or transfer without such consent shall be null and void). Nothing in this Agreement.
(b) Subject to Section 12.05(e), expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants prior to the extent provided in this Section 12.05 andoccurrence of an Event of Default, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Bank may, without the consent of the Borrower, the Administrative Agent or the Issuing Bank, may at any time time, grant to an existing Bank or one or more banks banks, finance companies, insurance companies or other institutions entities (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”) in minimum amounts of not less than $5,000,000 (or any lesser amount in the case of participations to an existing Bank) participating interests in its Loan Commitment or any or all of its Loans. After the occurrence and during the continuance of an Event of Default, any Bank may at any time grant to any Person in any amount (each also a “ParticipationParticipant”), participating interests in its Loan Commitment or any or all of its Loans. Any participation made during the continuation of an Event of Default shall not be affected by the subsequent cure of such Event of Default. In the event of any such grant by a Bank of a Participation participating interest to a Participant, whether or not upon notice to Borrower or and Administrative Agent was given noticeAgent, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations hereunderunder this Agreement. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to clause (1), (2), (3), (4), (5), (6) or (7) of Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(i) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment; and
(iii) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Bank or an Affiliate of a Bank or an assignment final proviso of the entire remaining amount first sentence of the assigning Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;
(4) the Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:12.
Appears in 1 contract
Assignment; Participation. (a) This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Neither the Borrower nor the General Partner may not assign or transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written consent of each Bank all the Banks (and any attempted such assignment or transfer without such consent shall be null and void). Nothing in this Agreement.
(b) Subject to Section 12.05(e), expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants prior to the extent provided in this Section 12.05 andoccurrence of an Event of Default, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Bank may, without the consent of the Borrower, the Administrative Agent or the Issuing Bank, may at any time time, grant to an existing Bank or one or more banks banks, finance companies, insurance companies or other institutions entities (other a "Participant") in minimum amounts of not less than a natural person $5,000,000 (or a holding company, investment vehicle or trust for, or owned and operated for any lesser amount in the primary benefit case of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”participations to an existing Bank) participating interests in its Loan Commitment or any or all of its Loans. After the occurrence and during the continuance of an Event of Default, any Bank may at any time grant to any Person in any amount (each also a “Participation”"Participant"), participating interests in its Loan Commitment or any or all of its Loans. Any participation made during the continuation of an Event of Default shall not be affected by the subsequent cure of such Event of Default. In the event of any such grant by a Bank of a Participation participating interest to a Participant, whether or not upon notice to Borrower or and Administrative Agent was given noticeAgent, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s 's rights and obligations hereunderunder this Agreement. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to clause (1), (2), (3), (4), (5), (6) or (7) of Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(i) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment; and
(iii) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Bank or an Affiliate of a Bank or an assignment final proviso of the entire remaining amount first sentence of the assigning Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;
(4) the Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:12.
Appears in 1 contract
Assignment; Participation. This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of each Bank (and any attempted assignment or transfer without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants to the extent provided in this Section 12.05 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreementhereunder. Any Bank may, without the consent of the Borrower, the Administrative Agent or the Issuing Bank, may at any time grant to one or more banks or other institutions (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”) participating interests in its Loan (each a “"Participation”). In the event of any such grant by a Bank of a Participation to a Participant, whether or not Borrower or Administrative Agent was given notice, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations hereunder. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to clause (B)(1) through (B)(5) of Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, protection and increased cost and tax provisions of Article III. Any Bank may at any time assign to any bank or other institution with the consent of Administrative Agent and the Issuing Bank and, but a Participant provided there exists no Event of Default, Borrower, which consents shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts unreasonably withheld or delayed (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all ), all, or a portion proportionate part of all, of its rights and obligations under this Agreement and its Note, and such Assignee shall assume rights and obligations, pursuant to an Assignment and Acceptance executed by such Assignee and the assigning Bank, provided that, in each case, after giving effect to such assignment the Assignee’s Loan Commitment, and, in the case of a partial assignment, the assigning Bank’s Loan Commitment, each will be equal to or greater than $5,000,000, provided, further, however, that the assigning Bank shall not be required to maintain a Loan Commitment in the minimum amount aforesaid in the event it assigns all of its rights and obligations under this Agreement and its Note. Notwithstanding the provisions of the immediately preceding sentence, the consent of Borrower shall not be required in the case of assignments by any Bank provided that the Assignee thereunder (including all or a portion guarantor of such Assignee’s obligations under this Agreement) has a credit rating of AA (or its Loan Commitment and the Loans at the time owing to itequivalent) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
higher from a nationally recognized rating agency. Upon (i) execution and delivery of such instrument, (ii) payment by such Assignee to the Bank of an amount equal to the purchase price agreed between the Bank and such Assignee and (iii) payment by such Assignee to Administrative Agent of a fee, for Administrative Agent’s own account, in the amount of $3,500, such Assignee shall be a Bank Party to this Agreement and shall have all the rights and obligations of a Bank as set forth in such Assignment and Acceptance, and the assigning Bank shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this paragraph, substitute Ratable Loan Notes (and, if applicable, Swing Loan Note) shall be issued to the assigning Bank and Assignee by Borrower, provided that no consent in exchange for the return of the original Ratable Loan Note (and, if applicable, Swing Loan Note). The obligations evidenced by such substitute notes shall constitute “Obligations” for all purposes of this Agreement and the other Loan Documents. In connection with Borrower’s execution of substitute notes as aforesaid, Borrower shall be required deliver to Administrative Agent evidence, satisfactory to Administrative Agent, of all requisite corporate action to authorize Borrower’s execution and delivery of the substitute notes and any related documents. If the Assignee is not incorporated under the Laws of the United States of America or a state thereof, it shall, prior to the first date on which interest or fees are payable hereunder for an assignment its account, deliver to a Bank, an Affiliate Borrower and Administrative Agent certification as to exemption from deduction or withholding of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower United States federal income taxes in accordance with Section 10.13. Each Assignee shall be deemed to have consented made the representations contained in, and shall be bound by the provisions of, Section 10.13. Notwithstanding the foregoing, any Designated Lender may assign at any time to its Designating Lender, without the consents required by or other limitations set forth in the first sentence of this paragraph, any or all of the Loans it may have funded hereunder and pursuant to its Designation Agreement. Any Bank may at any time assign all or any portion of its rights under this Agreement and its Note to a Federal Reserve Bank. No such assignment shall release the transferor Bank from its obligations hereunder. Borrower recognizes that in connection with a Bank’s selling of Participations or making of assignments, any or all documentation, financial statements, appraisals and other data, or copies thereof, relevant to Borrower or the Loans may be exhibited to and retained by any such Participant or assignee or prospective Participant or assignee. In connection with a Bank’s delivery of any financial statements and appraisals to any such assignment unless it Participant or assignee or prospective Participant or assignee, such Bank shall object thereto also indicate that the same are delivered on a confidential basis. Borrower agrees to provide all assistance reasonably requested by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank to enable such Bank to sell Participations or make assignments of its Loan as permitted by this Section. Each Bank agrees to provide Borrower with a Loan Commitment immediately prior notice of all Participations sold by such Bank to giving effect to such assignment; and
(iii) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignmentother than its Affiliates. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Any Bank or an Affiliate of a Bank Participant may pledge its Loans or an assignment of the entire remaining amount of the assigning Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined Participations as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;
(4) the Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information collateral in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:law.
Appears in 1 contract
Sources: Revolving Loan Agreement (Avalonbay Communities Inc)
Assignment; Participation. This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of each Bank (and any attempted assignment or transfer without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants to the extent provided in this Section 12.05 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreementhereunder. Any Bank may, without the consent of the Borrower, the Administrative Agent or the Issuing Bank, may at any time grant to one or more banks or other institutions (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “"Participant”") participating interests in its Loan (each a “"Participation”"). In the event of any such grant by a Bank of a Participation to a Participant, whether or not Borrower or Administrative Agent was given notice, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s 's rights and obligations hereunder. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to clause (1) through (5) of Section 12.02 without the consent of the Participant. Any Participant hereunder shall have Bank may at any time assign to any bank or other institution with the same benefits as any Bank with respect to acknowledgment of Administrative Agent and the yield protectionconsent of Co-Agents and, increased cost and tax provisions provided there exists no Event of Article IIIDefault, but a Participant Borrower, which consents shall not be entitled to receive any greater payment than the Bank granting unreasonably withheld or delayed (such Participation would have been entitled to receive. Each Bank that sells assignee, a participation shall"Consented Assignee"), acting solely for this purpose as a non-fiduciary agent of the Borroweror, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitmentswithout such consents, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees banks or other institutions which are majority owned subsidiaries of a Bank or to the Parent of a Bank (each such assigneeConsented Assignee or subsidiary bank or institution, an “"Assignee”") all all, or a portion proportionate part of all, of its rights and obligations under this Agreement and its Note, and such Assignee shall assume rights and obligations, pursuant to an Assignment and Assumption Agreement executed by such Assignee and the assigning Bank, provided that, in each case, after giving effect to such assignment the Assignee's Loan Commitment, and, in the case of a partial assignment, the assigning Bank's Loan Commitment, each will be equal to or greater than $10,000,000, provided, further, however, that the assigning Bank shall not be required to maintain a Loan Commitment in the minimum amount aforesaid in the event it assigns all of its rights and obligations under this Agreement and its Note. Notwithstanding the provisions of the immediately preceding sentence, the consents of Co-Agents and Borrower shall not be required in the case of assignments by any Bank provided that the Assignee thereunder (including all or a portion guarantor of such Assignee's obligations under this Agreement) has a credit rating of AA (or its Loan Commitment equivalent) or higher from a nationally recognized rating agency, and provided, further, however, that assignments by Co-Agents shall remain subject to the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
provisions of Section 10.14. Upon (i) execution and delivery of such instrument, (ii) payment by such Assignee to the Bank of an amount equal to the purchase price agreed between the Bank and such Assignee and (iii) payment by such Assignee to Administrative Agent of a fee, for Administrative Agent's own account, in the amount of $3,500, such Assignee shall be a Bank Party to this Agreement and shall have all the rights and obligations of a Bank as set forth in such Assignment and Assumption Agreement, and the assigning Bank shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this paragraph, substitute Ratable Loan Notes (and, if applicable, Swing Loan Notes) shall be issued to the assigning Bank and Assignee by Borrower, provided that no consent in exchange for the return of the original Ratable Loan Note (and, if applicable, Swing Loan Note). The obligations evidenced by such substitute notes shall constitute "Obligations" for all purposes of this Agreement and the other Loan Documents. In connection with Borrower's execution of substitute notes as aforesaid, Borrower shall be required deliver to Administrative Agent evidence, satisfactory to Administrative Agent, of all requisite corporate action to authorize Borrower's execution and delivery of the substitute notes and any related documents. If the Assignee is not incorporated under the Laws of the United States of America or a state thereof, it shall, prior to the first date on which interest or fees are payable hereunder for an assignment its account, deliver to a Bank, an Affiliate Borrower and Administrative Agent certification as to exemption from deduction or withholding of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower United States federal income taxes in accordance with Section 10.13. Each Assignee shall be deemed to have consented made the representations contained in, and shall be bound by the provisions of, Section 10.13. Notwithstanding the foregoing, any Designated Lender may assign at any time to its Designating Lender, without the consents required by or other limitations set forth in the first sentence of this paragraph, any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent or all of the Administrative Agent shall be required for an assignment Loans it may have funded hereunder and pursuant to its Designation Agreement. Any Bank may at any time assign all or any portion of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment; and
(iii) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment its rights under this Agreement and its Note to a Bank or an Affiliate of a Bank or an assignment of the entire remaining amount of the assigning Federal Reserve Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;
(4) the Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no . No such assignment shall be made (A) to release the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of transferor Bank from its Consolidated Businesses, or any Person who, upon becoming a Bank obligations hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:.
Appears in 1 contract
Sources: Revolving Loan Agreement (Avalonbay Communities Inc)
Assignment; Participation. This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of each Bank (and any attempted assignment or transfer without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants to the extent provided in this Section 12.05 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Bank may, without the consent of of, or notice to, the Borrower, the Administrative Agent or the Issuing Bank, at any time grant to one or more banks or other institutions (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”) participating interests in its Loan (each a “Participation”). In the event of any such grant by a Bank of a Participation to a Participant, whether or not Borrower or Administrative Agent was given notice, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations hereunder. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, protection and increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank Lender granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(i) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”assignee;
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment to an Assignee assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment; and
(iii) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of any Loan Commitment to an Assignee assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Bank or an Affiliate of a Bank or an assignment of the entire remaining amount of the assigning Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;; and
(4) the Assigneeassignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information in accordance with the Assigneeassignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:.
Appears in 1 contract
Sources: Revolving Loan Agreement (Avalonbay Communities Inc)
Assignment; Participation. This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks Lenders and their respective successors and permitted assigns. Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of each Bank (and any attempted assignment or transfer without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants to the extent provided in this Section 12.05 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreementhereunder. Any Bank may, without the consent of the Borrower, the Administrative Agent or the Issuing Bank, Lender may at any time grant to one or more banks or other institutions (other than a natural person (financial institutions, insurance companies or a holding company, investment vehicle companies or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the funds not affiliated with Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “"Participant”") participating interests in its Loan (each a “Participation”"Participations"). In the event of any such grant by a Bank Lender of a Participation to a Participant, whether or not Borrower or Administrative Agent was given notice, such Bank Lender shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank Lender in connection with such Bank’s Lender's rights and obligations hereunder. Any agreement pursuant to which any Bank Lender may grant such a participating interest Participation shall provide that such Bank Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document Document, including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided provided, however, that such participation agreement may provide that such Bank Lender will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to sub-clauses (i) through (ix) of clause (c) of Section 12.02 without the consent of the Participant. Any Participant hereunder shall have Lender may at any time assign (a) to any bank or other financial institution, insurance company or investment company or fund not affiliated with Borrower with the same benefits as any Bank with respect to the yield protectionconsent of Administrative Agent and, increased cost and tax provisions provided there exists no Event of Article IIIDefault, but a Participant of Borrower, which consents shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shallunreasonably withheld or delayed, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts or (and stated interestb) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees banks or other financial institutions, insurance companies or investment companies or funds not affiliated with Borrower which are majority owned subsidiaries of a Lender or of the Parent of a Lender or which is the surviving entity in a merger or consolidation of a Lender or its Parent, or which, in the case of an investment company or fund, are managed by the same advisor (each such assigneeconsented to (under clause (a) above) or permitted (under clause (b) above) bank or other financial institution, insurance company or investment company or fund, an “"Assignee”") all all, or a portion proportionate part of all, of its rights and obligations under this Agreement (including all or a portion of and its Loan Commitment Notes, and such Assignee shall assume rights and obligations, pursuant to an Assignment and Assumption Agreement executed by such Assignee and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(i) the Borrowerassigning Lender, provided that no consent of the Borrower shall be required for an assignment to a Bankthat, an Affiliate of a Bankin each case, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment; assignment the Assignee's Loan Commitment, and
(iii) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Bank or an Affiliate of a Bank or an assignment of the entire remaining amount of partial assignment, the assigning Bank’s Lender's Loan Commitment Commitment, each will be equal to or Loansgreater than $5,000,000, unless otherwise permitted by Administrative Agent (it being understood that in the amount case of two (2) or more investment companies or funds managed by the same advisor, such minimum Loan Commitments shall be calculated by aggregating the Loan Commitments of all such funds, provided, however, that the Loan Commitment of each such individual investment company or Loans of fund shall be equal to or greater than $1,000,000, unless otherwise permitted by Administrative Agent); provided, further, however, that the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) Lender shall not be less than $5,000,000 unless each required to maintain a Loan Commitment in the minimum amount aforesaid in the event it assigns all of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s its rights and obligations under this Agreement;
Agreement and its Notes. Upon (3i) the parties to each assignment shall execute execution and deliver delivery of such instrument, (ii) payment by such Assignee to the assigning Lender of an amount equal to the purchase price agreed between such Lender and such Assignee and (iii) payment by such Assignee to Administrative Agent an of a fee, for Administrative Agent's own account, in the amount of $3,500 (provided that only one such fee shall be required in the event of a simultaneous assignment to two (2) or more investment companies or funds managed by the same advisor), such Assignee shall be a Lender under this Agreement and shall have all the rights and obligations of a Lender as set forth in such Assignment and AcceptanceAssumption Agreement, together with and the assigning Lender shall be released from its obligations hereunder to a processing corresponding extent, and recordation fee no further consent or action by any party shall be required. Upon the consummation of $3,500;
(4) the Assigneeany assignment pursuant to this paragraph, if it substitute Notes shall not be a Bank, shall deliver issued to the Administrative Agent an Administrative Questionnaire assigning Lender (in which the case of a partial assignment) and Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about by Borrower, in exchange for the Borrower and its related parties or its securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any return of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:original Notes
Appears in 1 contract
Sources: Secured Loan Agreement (Crescent Real Estate Equities Co)
Assignment; Participation. This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of each Bank (and any attempted assignment or transfer without such consent shall be null and void). Nothing void).Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants to the extent provided in this Section 12.05 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks Agent or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Bank may, without the consent of the Borrower, Borrower or the Administrative Agent or the Issuing BankAgent, at any time grant to one or more banks or other institutions (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “Participant”) participating interests in its Loan (each a “Participation”). In the event of any such grant by a Bank of a Participation to a Participant, whether or not Borrower or Administrative Agent was given notice, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations hereunder. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, and increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth below, any Bank may assign to one or more assignees (each such assignee, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(i) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment or Loan to an Assignee that is (A) a Bank with a Loan Commitment holding Loans immediately prior to giving effect to such assignment; and
, (iiiB) the Issuing an Affiliate of such Bank, provided that no consent of the Issuing Bank shall be required for or (C) an assignment of any Loan Commitment to an Assignee that is a Bank Approved Fund with a Loan Commitment immediately prior to giving effect respect to such assignmentBank. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Bank or an Affiliate of a Bank or any Approved Fund or an assignment of the entire remaining amount of the assigning Bank’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and obligations under this Agreement, except that this clause (2) shall not prohibit any Bank from assigning all or a portion of its rights and obligations among separate tranches of Loans on a non-pro rata basis;
(3) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;
(4) the Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties Related Parties or its securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:.
Appears in 1 contract
Assignment; Participation. This Agreement shall be binding upon, and shall inure to the benefit of, Borrower, Administrative Agent, the Banks and their respective successors and permitted assigns. Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of each Bank (and any attempted assignment or transfer without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Indemnitees, Participants to the extent provided in this Section 12.05 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks or the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreementhereunder. Any Bank may, without the consent of the Borrower, the Administrative Agent or the Issuing Bank, may at any time grant to one or more banks or other institutions (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses) (each a “"Participant”") participating interests in its Loan (each a “Participation”the "Participations"). In the event of any such grant by a Bank of a Participation to a Participant, whether or not Borrower or Administrative Agent was given notice, such Bank shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s 's rights and obligations hereunder. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any other Loan Document including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso to clause (1) through (5) of Section 12.02 without the consent of the Participant. Any Participant hereunder shall have the same benefits as any Bank with respect to the yield protection, increased cost and tax provisions of Article III, but a Participant shall not be entitled to receive any greater payment than the Bank granting such Participation would have been entitled to receive. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Subject to the conditions set forth belowprovisions of Section 10.14, any Bank may at any time assign to any bank or other institution with the acknowledgment of Administrative Agent and the consent of Co-Agents and, provided there exists no Event of Default, Borrower, which consents shall not be unreasonably withheld or delayed (such assignee, a "Consented Assignee"), or to one or more assignees banks or other institutions which are majority owned subsidiaries of a Bank or to the Parent of a Bank (each such assigneeConsented Assignee or subsidiary bank or institution, an “"Assignee”") all all, or a portion proportionate part of all, of its rights and obligations under this Agreement (including all or a portion of and its Loan Commitment Note, and such Assignee shall assume rights and obligations, pursuant to an Assignment and Assumption Agreement executed by such Assignee and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(i) the Borrowerassigning Bank, provided that no consent of the Borrower shall be required for an assignment to a Bankthat, an Affiliate of a Bankin each case, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Assignee; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Banking Days after having received written notice thereof requesting the Borrower’s approval and containing a legend that states “REQUEST FOR APPROVAL - FAILURE TO OBJECT TO THIS REQUEST WITHIN FIVE (5) BANKING DAYS SHALL BE DEEMED APPROVAL”;
(ii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment; assignment the Assignee's Loan Commitment, and
(iii) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of any Loan Commitment to an Assignee that is a Bank with a Loan Commitment immediately prior to giving effect to such assignment. Such assignments shall be subject to the following additional conditions:
(1) except in the case of an assignment to a Bank or an Affiliate of a Bank or an assignment of the entire remaining amount of partial assignment, the assigning Bank’s 's Loan Commitment Commitment, each will be equal to or Loansgreater than $10,000,000, the amount of the Loan Commitment or Loans of provided, further, however, that the assigning Bank subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each required to maintain a Loan Commitment in the minimum amount aforesaid in the event it assigns all of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(2) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s its rights and obligations under this Agreement;
(3) Agreement and its Note. Notwithstanding the parties to each assignment shall execute provisions of the immediately preceding sentence, the consents of Co-Agents and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500;
(4) the Assignee, if it Borrower shall not be a Bank, shall deliver to required in the Administrative Agent an Administrative Questionnaire in which case of assignments by any Bank provided that the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or its securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(5) no such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Consolidated Businesses, or (B) to any Defaulting Lender or any of its Consolidated Businesses, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person thereunder (or a holding companyguarantor of such Assignee's obligations under this Agreement) has a credit rating of AA (or its equivalent) or better from a nationally recognized rating agency, investment vehicle and provided, further, however, that assignments by the Co-Agents shall remain subject to the provisions of Section 10.14. Upon (i) execution and delivery of such instrument, (ii) payment by such Assignee to the Bank of an amount equal to the purchase price agreed between the Bank and such Assignee and (iii) payment by such Assignee to Administrative Agent of a fee, for Administrative Agent's own account, in the amount of $2,500, such Assignee shall be a Bank Party to this Agreement and shall have all the rights and obligations of a Bank as set forth in such Assignment and Assumption Agreement, and the assigning Bank shall be released from its obligations hereunder to a corresponding extent, and no further consent or trust foraction by any party shall be required. Upon the consummation of any assignment pursuant to this paragraph, or owned substitute Ratable Loan Notes (and, if applicable, Swing Loan Notes) shall be issued to the assigning Bank and operated for the primary benefit of, a natural person). For the purposes of this Section 12.05, the term “Approved Fund” has the following meaning:Assignee by
Appears in 1 contract
Sources: Revolving Loan Agreement (Avalon Bay Communities Inc)