Assignment; Participations. (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively. (f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender. (g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender. (h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Assignment; Participations. This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Bank and their respective successors and assigns, except that the Borrower may not assign or transfer its rights or obligations hereunder. The Bank may sell Participations in, or upon ten (10) days' notice to the Borrower may assign all or any part of, any Revolving Loan to another lender, in which event (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an the assignee shall have, to the extent of such assignment of all (unless otherwise provided therein), the same rights, benefits and obligations as it would have if it were the Bank hereunder; and (b) in the case of a Lender's participation, the participant shall have no rights and obligations under this Agreement, the amount Revolving Note or any other Loan Document. The agreement executed by the Bank in favor of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers participant shall not be required; and (v) give the parties participant the right to each such assignment shall execute and deliver require the Bank to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with take or omit to take any Note or Notes subject action hereunder except action directly relating to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be extension of a party hereto and, regularly scheduled payment date with respect to any portion of the extent that rights and obligations principal of or interest on any amount outstanding hereunder have been assigned to it pursuant allocated to such Assignment and Acceptanceparticipant, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to reduction of the extent that rights and obligations hereunder have been assigned by it pursuant principal amount allocated to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all participant or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies the reduction of the financial statements referred to in sections 5.05 and 6.08(a) and rate of interest payable on such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender amount or any other Lender and based on such documents and amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with the Bank. The Bank may furnish any information as it shall deem appropriate at concerning the time, continue to make its own credit decisions Borrower in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all possession of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender Bank from time to time to assignees and participants (the "REGISTER"). The entries in the Register shall be conclusive including prospective assignees and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by itparticipants); PROVIDED, HOWEVER, PROVIDED that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) the Bank shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of require any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the prospective assignee or such participant (prospective or proposed assignee oR participant, any information relating otherwise) to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve maintain the confidentiality of any confidential information received by it from such Lenderinformation.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Sources: Credit Agreement (Core Inc)
Assignment; Participations. This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Bank and their respective successors and assigns, except that the Borrower may not assign or transfer its rights or obligations hereunder. The Bank may assign, or sell participations in, all or any part of any Loan to another bank or other entity, in minimum amounts of $5,000,000, in which event (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreementupon notice thereof by the Bank to the Borrower, the amount assignee shall have, to the extent of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuingunless otherwise provided therein), the consent of same rights, benefits and obligations as it would have if it were the Borrowers shall not be requiredBank hereunder; and (vb) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Registercase of a participation, an Assignment and Acceptance, together with the participant shall have no rights under the Facility Documents. The agreement executed by the Bank in favor of the participant shall not give the participant the right to require the Bank to take or omit to take any Note or Notes subject action hereunder except action directly relating to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be extension of a party hereto and, payment date with respect to any portion of the extent that rights and obligations principal of or interest on any amount outstanding hereunder have been assigned to it pursuant allocated to such Assignment and Acceptanceparticipant, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition reduction of the Borrowers principal amount outstanding hereunder or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies the reduction of the financial statements referred to in sections 5.05 and 6.08(a) and rate of interest payable on such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender amount or any other Lender and based on such documents and amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with the Bank. The Bank may furnish any information as it shall deem appropriate at concerning the time, continue to make its own credit decisions Borrower in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all possession of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender Bank from time to time to assignees and participants (the "REGISTER"). The entries in the Register shall be conclusive including prospective assignees and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by itparticipants); PROVIDED, HOWEVER, provided that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) the Bank shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of require any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the prospective assignee or such participant (prospective or proposed assignee oR participant, any information relating otherwise) to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve maintain the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may information. The Bank shall have the right at any time create a security interest in to pledge all or any portion of its rights under the Loans or this Agreement (including, without limitation, the Loans owing to it and or the Note or Notes held by itto any of the twelve (12) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors Banks organized under Section 4 of the Federal Reserve System.Act, 12 U.S.C. Section 341. No such
Appears in 1 contract
Assignment; Participations. (a) Each The Lender may assign to one or more Eligible Assignees all or a portion any of its rights and obligations hereunder or under this Agreement (including, without limitation, all or an undivided portion any of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that the other Loan Documents (i) each to a regulated financial institution without the consent of, but upon notice to, the Borrower, and (ii) to a non-regulated financial institution with, so long as no Event of Default has occurred and is continuing, the consent of the Borrower (such assignment consent not to be unreasonably withheld, conditioned or delayed). In the event the Borrower fails to respond to such request for consent within ten (10) Business Days after its receipt thereof, the Borrower shall be deemed to have consented thereto. In the event the Borrower refuses to give its consent to such request, the Borrower shall have the option of either (i) prepaying the Loan in full, without penalty, within sixty (60) days thereafter, or (ii) waiving its right to object to such assignment. The Lender may also grant or sell participation interests in this Agreement and the other Loan Documents and all sums payable hereunder and thereunder (each, a uniform“Participation”) so long as each of the following conditions is satisfied with respect to such Participation: (i) in the absence of an Event of Default, and the proposed participant is not a varying, undivided percentage of all rights and obligations under and in respect Competitor of the Revolving Credit Commitments, Revolving Credit Loans and Term LoansBorrower or any Affiliate thereof; (ii) except no participant shall have direct recourse against the Borrower or any Affiliate of the Borrower but only through the Lender; (iii) the Borrower shall continue to deal solely and exclusively with the Lender in connection with the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's ’s rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment ; and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no any agreement or instrument pursuant to which the Lender sells such assignments a Participation shall provide that any action to be permitted taken to enforce the terms of this Agreement or to amend, modify or waive any provisions thereof shall require the consent of not less than a majority of the parties holding an interest this Agreement and all sums payable thereunder; provided, however, that such agreement or instrument may provide that, without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptanceparticipant, the Lender assignor thereunder and the assignee thereunder confirm to and may not agree with each other and the other parties hereto as followsto: (iA) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to postpone any statements, warranties or representations made in or in connection with date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal of, premium, if any, and/or interest on the Note, or any other amounts due by the Borrower or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created Guarantor under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; Document, (iiB) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to reduce the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries amount of any of their obligations under any Facility Document scheduled principal and/or interest payment due hereunder or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case by the Borrower or the Guarantor to the extent subject to such participation, postpone Lender under any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the CollateralLoan Documents; and (vi) provided, however, that only the identity consent of a majority of the participant participants shall have been approved by be necessary to amend the Agent in writing to such Lender.
definition of “Default Rate”, (gC) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to release the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality Guarantor of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights payment or performance obligations under its Guaranty, (D) release, subordinate or substitute any collateral given to secure the Borrower’s obligations under this Agreement or any other Loan Document, or (includingE) amend, without limitation, waive or modify the Loans owing to it and the Note or Notes held by it) in favor provisions of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Systemthis Section 9.13.
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Assignment; Participations. (a) Each Lender This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Bank and their respective successors and assigns, except that the Borrower may not assign to one or more Eligible Assignees all or a portion of transfer its rights or obligations hereunder. Subject to Sections 10.05(b) and obligations (c) hereof, the Bank may not assign or transfer its rights under this Agreement (includingand the Note without the prior written consent of the Borrower; provided, however, that the Bank may, without limitationsuch consent or notice, sell participations in, all or an undivided portion any part of all of its Revolving Credit Commitmentany Loan to another bank or other entity, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except which event in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreementparticipation, the amount participant shall have no rights under the Facility Documents and all amounts payable by the Borrower under Article 3 shall be determined as if the Bank had not sold such participation. The agreement executed by the Bank in favor of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers participant shall not be required; and (v) give the parties participant the right to each such assignment shall execute and deliver require the Bank to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with take or omit to take any Note or Notes subject action hereunder except action directly relating to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be extension of a party hereto and, payment date with respect to any portion of the extent that rights and obligations principal of or interest on any amount outstanding hereunder have been assigned to it pursuant allocated to such Assignment and Acceptanceparticipant, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shallreduction of the principal amount outstanding hereunder or (iii) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with the extent Bank. The Bank may furnish any information concerning the Borrower in the possession of the Bank from time to time to assignees and participants (including prospective assignees and participants); provided that the Bank shall require any such prospective assignee or such participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information. With respect to participations and assignments of rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptanceof the Bank permitted under this paragraph (a), relinquish its rights and be released from the Bank shall remain solely responsible for the performance of its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders Borrower shall continue to deal solely and directly with such Lender the Bank in connection with such Lenderthe Bank's rights and obligations under this the Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(gb) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose In addition to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosureassignments and participations permitted under paragraph (a) and (c) hereof, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender Bank may at any time create a security interest in assign and pledge all or any portion of its rights Loans and Note to any affiliate of the Bank with prior notice to the Borrower, provided that the Bank shall remain solely responsible for the performance of its obligations under this Agreement and the Borrower shall continue to deal solely and directly with the Bank in connection with the Bank's rights (including, without limitationother than the right to receive payments) and obligations under this Agreement. No such assignment shall release the Bank from its obligations hereunder.
(c) In addition to the assignments and participations permitted under paragraphs (a) and (b) above, the Bank may assign and pledge all or any portion of its Loans owing and Note to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with without notice to the Borrower as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank, provided that the Bank shall remain solely responsible for the performance of it obligations under this Agreement and the Borrower shall continue to deal solely and directly with the Bank in connection with the Bank's obligations under this Agreement. No such assignment shall release the Bank from its obligations hereunder.
Appears in 1 contract
Assignment; Participations. This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Bank and their respective successors and assigns (a) Each Lender except that the Borrower may not assign to one or more Eligible Assignees all or a portion of transfer its rights or obligations hereunder), and obligations under this Agreement (includingsuch successors and assigns shall thereupon become vested with all the benefits in respect thereof granted to the Bank herein or otherwise; provided, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVERhowever, that (i) each such assignment the Bank may assign all or any part of any Loan or Loans made by it only with the prior consent of the Borrower (which shall not be of a uniformunreasonably withheld), and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except the Bank may sell participations therein, only to a bank, insurance company, trust company, brokerage house, pension fund, or other financial institution, in which event (a) in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an the assignee shall have, to the extent of such assignment of all (unless otherwise provided therein), the same rights and benefits and obligations as it would have if it were the Bank hereunder, and (b) in the case of a Lender's participation, the participant shall not have any rights and obligations under this Agreement, the amount Note, or any other documents referred to herein (the participant's rights against the Bank in respect of such participation to be those set forth in the agreement executed by the Bank in favor of the Revolving Credit Commitment of participant relating thereto) and all amounts payable by the assigning Lender being assigned pursuant to each such assignment (Borrower under Article 5 hereof shall be determined as if the Bank had not sold such participation, provided, however, that the Bank may not sell participations under any agreement which gives the participant a right to approve or disapprove of any consent, waiver or amendment by the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility Bank with respect to any statements, warranties or representations made in or in connection with provision of this Agreement (except for any provision hereof relating to the payment of any amount, the date on which such payment is due, the rate at which interest accrues on any Loan or any other Loan Document amount payable hereunder, or the execution, legality, validity, enforceability, genuineness, sufficiency or value release of any guarantee of, or the perfection substitution or priority release of any lien or collateral security interest created or purported to be created under or for, such Loans). The Bank may furnish any information concerning the Borrower in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition possession of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender Bank from time to time to assignees and participants (the "REGISTER"including prospective assignees and participants). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Sources: Credit Agreement (Performance Technologies Inc \De\)
Assignment; Participations. This Agreement shall be binding upon, and shall inure to the benefit of the Borrower, the Bank and their respective successors and assigns, except that the Borrower may not assign or transfer its rights or obligations hereunder. The Bank may sell participations in, or upon forty-five (45) days' notice may assign all or any part of any Loan to another lender, in which event (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an the assignee shall have, to the extent of such assignment of all (unless otherwise provided therein), the same rights, benefits and obligations as it would have if it were the Bank hereunder; and (b) in the case of a Lender's participation, the participant shall have no rights and obligations under this Agreement, the amount Note or the Security Agreement. The agreement executed by the Bank in favor of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers participant shall not be required; and (v) give the parties participant the right to each such assignment shall execute and deliver require the Bank to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with take or omit to take any Note or Notes subject action hereunder except action directly relating to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be extension of a party hereto and, regularly scheduled payment date with respect to any portion of the extent that rights and obligations principal of or interest on any amount outstanding hereunder have been assigned to it pursuant allocated to such Assignment and Acceptanceparticipant, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to reduction of the extent that rights and obligations hereunder have been assigned by it pursuant principal amount allocated to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all participant or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies the reduction of the financial statements referred to in sections 5.05 and 6.08(a) and rate of interest payable on such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender amount or any other Lender and based on such documents and information amount of fees payable hereunder to a rate or amount, as it shall deem appropriate at the timecase may be, continue below that which the participant is entitled to make receive under its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes agreement with the Agent to take such action as agent on its behalf and to exercise such powers and discretion under Bank. Without limiting the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all generality of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowersforegoing, the Agent and Bank reserves the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time right to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to assign all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder part of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, Loan or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank; provided, however, that no such assignment shall release the Bank from its obligations hereunder. The Bank may furnish any information concerning the Borrower in accordance with Regulation A the possession of the Board of Governors of the Federal Reserve SystemBank from time to time to assignees and participants (including prospective assignees and participants).
Appears in 1 contract
Sources: Credit Agreement (Lincoln Snacks Co)
Assignment; Participations. (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDEDprovided, HOWEVERhowever, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections ▇▇.▇▇. 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section ss. 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTERRegister"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I Exhibit G hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS Exhibits A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDEDprovided, HOWEVERhowever, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR or participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDEDprovided, HOWEVERhowever, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Assignment; Participations. This Agreement shall be binding upon, and shall inure to the benefit of, the Borrowers, each Agent, the Banks and their respective successors and assigns, except that no Borrower may assign or transfer its rights or obligations hereunder. Each Bank may assign, or sell participations in, all or any part of its Commitment, its Swing Line Commitment, if any, or of its ratable share of the Obligations to another bank or other entity. Each assignment shall be in the minimum amount of $5,000,000 and the proposed assignee shall be subject to the prior written approval of the Company (which approval shall not be unreasonably withheld or delayed) and the Agents (which approval shall not be unreasonably withheld or delayed) (except that no such consent shall be required in connection with an assignment or participation sold by a Bank to another bank controlled by such Bank or its holding company). In the event of an assignment or participation, (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was the assignee shall become a Lender or an assignment of all of signatory hereto, and upon notice thereof by the Bank to the Borrowers with a Lender's rights and obligations under this Agreement, copy to the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Syndication Agent and Administrative Agent, and upon payment to the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) Administrative Agent by the parties to each such the assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto andhave, to the extent that rights of such assignment (unless otherwise provided therein), the same rights, benefits and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder as any other Bank hereunder; and (iib) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptanceparticipation, the Lender assignor thereunder participant shall have no rights under the Transaction Documents and all amounts payable by the assignee thereunder confirm to Borrowers hereunder and agree with each other and under the other parties hereto Transaction Documents shall be determined as follows: if such Bank had not sold such participation. The agreement executed by such Bank in favor of the participant shall -108- 114 not give the participant the right to require such Bank to take or omit to take any action hereunder except action directly relating to (i1) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility the extension of a payment date with respect to any statementsportion of the principal of or interest on any amount outstanding hereunder allocated to such participant, warranties (2) increases in the amount of such participating bank's Commitment or representations made in Term Loan Commitment, or in connection with this Agreement (3) the reduction of the rate of interest payable on such amount or any other Loan Document amount of fees payable hereunder to a rate or amount, as the executioncase may be, legality, validity, enforceability, genuineness, sufficiency or value of, or below that which the perfection or priority of participant is entitled to receive under its agreement with such Bank. The Banks may furnish any lien or security interest created or purported to be created under or information concerning the Credit Parties in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition possession of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender Banks from time to time to assignees and participants (including prospective assignees and participants); provided that the "REGISTER")Banks shall require any such prospective assignee or such participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof In addition to the Borrowers. In the case of assignments and participations permitted under this SECTION 10.4, any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute Bank may assign and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank without obtaining the Company's approval. No such sale or assignment shall release the selling or assigning Bank from its obligations hereunder.
Appears in 1 contract
Sources: Credit Agreement (Interlogix Inc)
Assignment; Participations. (a) Each Lender With the written consent of the Agent and the Borrower (which consent shall not be unreasonably withheld), each Bank may assign to one or more Eligible Assignees commercial banks or financial institutions all or a portion of its rights and obligations under this Agreement (including, including without limitation, all or an undivided a portion of all of its Commitment and the amounts under the Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by owing to it); PROVIDEDprovided, HOWEVERhowever, that (i) each such assignment shall be of a uniformconstant, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lenderassigning Bank's rights and obligations under this Agreement, (ii) the amount of the Revolving Credit Commitment of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Acceptance) with respect to such assignment) assignment shall in no event be less than $5,000,000; 5,000,000 and shall be an integral multiple of $500,000 (or in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Bank's rights and obligations under this Agreement, any lesser increment), and (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the RegisterRegister (as defined in (c) below), an Assignment and AcceptanceAcceptance and a $3,500 non-refundable processing fee from the assigning Bank. Notwithstanding the foregoing, together no written consent of the Borrower shall be required in connection with any Note assignment by a Bank to an Affiliate of such Bank of all or Notes subject to such assignment a portion of its rights and a processing and recordation fee of $3,500.
(b) obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall be a Bank party hereto and, to the extent that rights and obligations (including any portion of any Commitment) hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank hereunder and (iiy) the Lender Bank assignor thereunder shall, to the extent that rights and obligations (including any portion of any Commitment) hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights to indemnification under Section 9.3) and be released from its obligations under this Agreement arising after the date of assignment (and, in the case of an Assignment and Acceptance assignment covering all or the remaining portion of an assigning LenderBank's rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto.).
(cb) By executing and delivering an Assignment and Acceptance, the Lender Bank assignor thereunder thereun der and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or theretohereto; (ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries Borrower or the performance or observance by the Borrowers or their Subsidiaries Borrower of any of their its obligations under any Facility Document this Agreement or any other instrument or document furnished pursuant theretohereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in sections 5.05 and 6.08(a) Section 5.8 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender Bank or any other Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent Agent on its behalf and to exercise such powers and discretion under the Loan Documents this Agreement as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (viivi) such assignee agrees that it will perform in accordance with their the terms all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank; and (vii) such assignee represents that such assignment will not result in any Prohibited Transaction.
(dc) The Agent shall maintain at its address referred to in section 12.06 set forth on the signature pages hereto a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders Banks and the Revolving Credit Commitment of, and principal amount of the Revolving Loans owing to to, each Lender Bank from time to time (the "REGISTERRegister"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowersBorrower, the Agent and the Lenders Banks may treat each Person whose name is recorded in the Register as a Lender Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers Borrower or any Lender Bank at any reasonable time and from time to time upon reasonable prior notice.
(ed) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Bank and an its assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I heretoExhibit E, (i) accept such Assignment and Acceptance; , (ii) record the information contained therein in the Register; Register and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectivelyBorrower.
(fe) Each Lender Bank may sell participations to one or more Persons (banks or other than the Borrowers or any of their Affiliates) entities in or to all or any a portion of its rights and obligations under this Agreement (including, including without limitation, all or a portion of its Commitment and the amounts under the Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by owing to it); PROVIDEDprovided, HOWEVERhowever, that (i) such LenderBank's obligations under this Agreement (including, including without limitation, its Revolving Credit CommitmentCommitment to the Borrower hereunder) shall remain unchanged; , (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations; obligations and (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the BorrowersBorrower, the Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank's rights and obligations under this Agreement; (v) provided, that no Bank shall transfer or grant any participation under which the participant under any such participation shall have any the right to approve any amendment to or waiver of any provision of any Facility Document, this Agreement or any consent to any departure by the Borrowers or any of their Subsidiaries therefromRevolving Note, except with respect to an extension of the extent that such amendment, waiver final maturity of the Revolving Loans or consent would reduce a reduction of the principal of, amount of or the rate of interest on, payable on the Notes Revolving Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lenderrelated thereto.
(gf) Any Lender Bank may, in connection with any assignment or participation or proposed assignment assign ment or participation pursuant to this ss. 12.05Section 9.5, disclose to the assignee or participant or proposed assignee oR participant, or participant any information relating to the Borrowers Borrower furnished to such Lender Bank by or on behalf of the BorrowersBorrower; PROVIDED, HOWEVER, provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information relating to the Borrower received by it from such LenderBank.
(hg) Notwithstanding Nothing herein shall prohibit any other provision set forth in this Agreement, Bank from pledging or assigning any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing Revolving Note to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Systemapplicable law.
Appears in 1 contract
Sources: Credit Agreement (Donegal Group Inc)
Assignment; Participations. This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Bank and their respective successors and assigns, except that the Borrower may not assign or transfer its rights or obligations hereunder. With the consent of the Borrower, which consent shall not be unreasonably withheld, the Bank may assign, or sell participations in, all or any part of any Loan to another bank or other entity, in which event (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreementupon notice thereof by the Bank to the Borrower, the amount assignee shall have, to the extent of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuingunless otherwise provided therein), the consent of same rights, benefits and obligations as it would have if it were the Borrowers shall not be requiredBank hereunder; and (vb) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Registercase of a participation, an Assignment and Acceptance, together with the participant shall have no rights under the Facility Documents. The agreement executed by the Bank in favor of the participant shall not give the participant the right to require the Bank to take or omit to take any Note or Notes subject action hereunder except action directly relating to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be extension of a party hereto and, payment date with respect to any portion of the extent that rights and obligations principal of or interest on any amount outstanding hereunder have been assigned to it pursuant allocated to such Assignment and Acceptanceparticipant, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition reduction of the Borrowers principal amount outstanding hereunder or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies the reduction of the financial statements referred to in sections 5.05 and 6.08(a) and rate of interest payable on such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender amount or any other Lender and based on such documents and amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with the Bank. The Bank may furnish any information as it shall deem appropriate at concerning the time, continue to make its own credit decisions Borrower in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all possession of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender Bank from time to time to assignees and participants (the "REGISTER"). The entries in the Register shall be conclusive including prospective assignees and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by itparticipants); PROVIDED, HOWEVER, provided that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) the Bank shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of require any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the prospective assignee or such participant (prospective or proposed assignee oR participant, any information relating otherwise) to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve maintain the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may information. The Bank shall have the right at any time create a security interest in to pledge all or any portion of its rights under the Loans or this Agreement (including, without limitation, the Loans owing to it and or the Note or Notes held by itto any of the twelve (12) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors Banks organized under Section 4 of the Federal Reserve System.Act, 12 U.S.
Appears in 1 contract
Assignment; Participations. (a) Each Lender This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Agent, the Banks and their respective successors and assigns, except that the Borrower may not assign to one or more Eligible Assignees all or a portion of transfer its rights and or obligations under this Agreement hereunder.
(includingb) Each Bank may, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers Borrower (which consent will not to be unreasonably withheldwithheld or delayed) except assign all or any part of its Commitments, its Note or Loans to another bank or other Person provided, however, that if a Default or (i) no such consent of the Borrower shall be required in an Event of Default under Section 9.01 hereof shall have occurred and be is continuing, (ii) no such consent by the Borrower or the Agent shall be required in the case of any assignment to another Bank; and (iii) any such partial assignment shall be made in an amount of at least $2,500,000. Upon execution and delivery by the assignee to the Borrower and the Agent of an instrument in writing pursuant to which such assignee agrees to become a "Bank" hereunder (if not already a Bank) having the Commitment and Loan specified in such instrument, and upon consent thereto by the Borrower and the Agent, to the extent required above, the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the Borrowers shall not be required; Borrower and (v) the parties to each such assignment shall execute and deliver to the Agent), for its acceptance and recording in the Registerobligations, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations benefits of a Bank hereunder have been holding the Commitment and Loans (or portions thereof) assigned to it pursuant (in addition to the Commitment and Loans, if any, theretofore held by such Assignment Assignee) and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptanceof assignment, relinquish its rights and be released from its obligations under this Agreement the Commitment (and, in or portion thereof) so assigned. Upon each such assignment the case assignee shall pay the Agent an assignment fee of an Assignment $3,500.00 and Acceptance covering all or if the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender assignee shall cease to not be a party hereto)Bank, deliver to the Agent an Administrative Questionnaire.
(c) By executing A Bank may sell or agree to sell to one or more banks or other Persons a participation in all or any part of any Loans held by it, or in its Commitment, in which event each purchaser of a participation (a "Participant") shall not, except as otherwise provided in Section 10.17 hereof, have any rights or benefits under this Agreement or any Note (the participant's rights against such Bank in respect of such participation to be those set forth in the agreements executed by such Bank in 36 favor of the Participant). All amounts payable by the Borrower to any Bank under Section 2 hereof in respect of Loans held by it and delivering an Assignment its Commitment, shall be determined as if such Bank had not sold or agreed to sell any participations in such Loan and AcceptanceCommitment, and as if such Bank were funding each of such Loan and Commitment in the Lender assignor thereunder same way that it is funding the portion of such Loan and Commitment in which no participations have been sold. The agreement executed by such Bank in favor of the assignee thereunder confirm Participant shall not give the Participant the right to and agree with each other and the other parties hereto as follows: require such Bank to take or omit to take any action hereunder except action directly relating to (i) other than as provided in such Assignment and Acceptancethe extension of the Maturity Date, such assigning Lender makes no representation or warranty and assumes no responsibility (ii) the extension of a payment date with respect to any statements, warranties or representations made in or in connection with this Agreement fees payable hereunder or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition portion of the Borrowers principal of or interest on any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; amount outstanding hereunder allocated to such participant, (iii) such assignee confirms that it has received a copy of this Agreement, together with copies the reduction of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; principal amount outstanding hereunder, or (iv) the reduction of the rate of interest payable on such assignee will, independently and without reliance upon the Agent, such assigning Lender amount or any other Lender and based on such documents and information amount of fees payable hereunder to a rate or amount, as it shall deem appropriate at the timecase may be, continue below that which the Participant is entitled to make receive under its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together agreement with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank.
(d) The Agent shall maintain at its address referred In addition to in section 12.06 a copy of each Assignment the assignments and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time participations permitted under paragraphs (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(eb) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iiic) give prompt notice thereof to the Borrowers. In the case of above, any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute Bank may assign and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights Loan and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (includingBank, without limitation, its Revolving Credit Commitment) shall remain unchanged; or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the Borrower or any of its Subsidiaries in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants), provided that such Bank shall require any assignee or participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information.
Appears in 1 contract
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Obligors, the Agent, the Banks and their respective successors and assigns, except that the Obligors may not assign or transfer their rights or obligations hereunder. Each Lender Bank may assign to one assign, or more Eligible Assignees sell participations in, all or a portion any part of any Loan or its rights and obligations under the Letters of Credit to another bank or other entity; provided that any such assignment by such Bank of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion in respect of all the Letters of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it)shall require the prior consent of Chase such consent not to be unreasonably withheld; PROVIDED, HOWEVER, provided further that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was upon notice thereof by the Bank to the Borrower with a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver copy to the Agent, for its acceptance the assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights, benefits and recording obligations as it would have if it were a Bank hereunder; and (ii) in the Registercase of a participation, an Assignment the participant shall have no rights under the Facility Documents and Acceptanceall amounts payable by the Borrower under Article 3 shall be determined as if such Bank had not sold such participation. The agreement executed by such Bank in favor of the participant shall not give the participant the right to require such Bank to take or omit to take any action hereunder except action directly relating to (i) the extension of a payment date with respect to any portion of the principal of or interest on any amount outstanding hereunder allocated to such participant, together (ii) the reduction of the principal amount outstanding hereunder or (iii) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with such Bank. Such Bank may furnish any information concerning the Obligors in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants); provided that such Bank shall require any such prospective assignee or such participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information. In connection with any Note or Notes subject assignment pursuant to this paragraph (a), the assigning Bank shall pay the Agent an administrative fee for processing such assignment and a processing and recordation fee in the amount of $3,5005,000.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights assignments and obligations hereunder have been assigned to it pursuant to such Assignment participations permitted under paragraph (a) above, any Bank may assign and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its Loans, its Notes and its rights and obligations under this Agreement (including, without limitation, all or a portion the Letters of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; Bank or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
Appears in 1 contract
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Obligors, the Agent, the Banks and their respective successors and assigns, except that the Obligors may not assign or transfer their rights or obligations hereunder. Each Lender Bank may assign to one assign, or more Eligible Assignees sell participations in, all or any part of any Loan or its rights and obligations under the Letters of Credit to another bank or other entity; provided that each such assignment shall be in a portion minimum amount equal to $5,000,000; provided further that any such assignment by such Bank of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Letters of Credit Commitmentsshall require the prior consent of Chase such consent not to be unreasonably withheld, Revolving Credit Loans and Term Loans; in which event (iii) except in the case of an assignment to a Person that, immediately prior to such assignment, was upon notice thereof by the Bank to the Borrower with a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver copy to the Agent, for its acceptance the assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights, benefits and recording obligations as it would have if it were a Bank hereunder; and (ii) in the Registercase of a participation, an Assignment the participant shall have no rights under the Facility Documents and Acceptanceall amounts payable by the Borrower under Article 3 shall be determined as if such Bank had not sold such participation. The agreement executed by such Bank in favor of the participant shall not give the participant the right to require such Bank to take or omit to take any action hereunder except action directly relating to (i) the extension of a payment date with respect to any portion of the principal of or interest on any amount outstanding hereunder allocated to such participant, together (ii) the reduction of the principal amount outstanding hereunder or (iii) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with such Bank. Such Bank may furnish any information concerning the Obligors in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants); provided that such Bank shall require any such prospective assignee or such participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information. In connection with any Note or Notes subject assignment pursuant to this paragraph (a), the assigning Bank shall pay the Agent an administrative fee for processing such assignment and a processing and recordation fee in the amount of $3,5005,000.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights assignments and obligations hereunder have been assigned to it pursuant to such Assignment participations permitted under paragraph (a) above, any Bank may assign and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its Loans, its Notes and its rights and obligations under this Agreement (including, without limitation, all or a portion the Letters of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; Bank or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
Appears in 1 contract
Assignment; Participations. (a) The Company may not assign its rights under this Agreement. Each Lender Bank may assign to one or more Eligible Assignees other financial institutions all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit CommitmentsLoans, Revolving Credit Loans or Term Loans its Notes, and any Note or Notes held by itits Commitment); PROVIDEDprovided, HOWEVERhowever, that:
(i) except in the case of an assignment to another Bank or an Affiliate of such Bank, any such assignment shall require the prior written approval of the Agent and the Company (such approval not to be unreasonably withheld or delayed), provided that the Company's consent is not required during the existence and continuation of an Event of Default;
(ii) except in the case of an assignment to another Bank or an Affiliate of such Bank or an assignment of all of a Bank's rights and obligations under this Agreement, any such partial assignment shall be in an amount at least equal to $5,000,000 (or, if less, the remaining amount of the Commitment being assigned by such Bank) and an integral multiple of $500,000 in excess thereof;
(iii) each such assignment by a Bank shall be of a constant, and not varying, percentage of all of its rights and obligations under this Agreement and the Notes; and
(iv) the parties to such assignment shall deliver to the Agent for its acceptance a processing fee from the assignor of $3,500. Upon execution, delivery, and acceptance of such assignment, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, rights, and benefits of a Bank hereunder and the assigning Bank shall, to the extent of such assignment, relinquish its rights and be released from its obligations under this Agreement. Upon the consummation of any assignment pursuant to this Section 9.10(a), the assignor, the Agent and the Company shall make appropriate arrangements so that, if required, new Notes are issued to the assignor and the assignee.
(b) Each Bank may sell participations to one or more Persons in all or a portion of its rights, obligations or rights and obligations under this Agreement (including all or a portion of its Commitment, its Notes and its Loans); provided, however, that (i) such LenderBank's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; , (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations; , (iii) such Lender the participant shall remain be entitled to the holder benefit of any such Note for all purposes the yield protection provisions contained in Article II, inclusive, and the right of this Agreement; set-off contained in Section 2.19, and (iv) the Borrowers, the Agent and the other Lenders Company shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank's rights and obligations under this Agreement; (v) no participant under any , and such participation Bank shall have any retain the sole right to enforce the obligations of the Company relating to its Loans and its Notes and to approve any amendment amendment, modification, or waiver of any provision of any Facility Documentthis Agreement (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is payable on such Loans or Notes, extending any consent to any departure by the Borrowers scheduled principal payment date or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any the payment of principal ofinterest on such Loans or Notes, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lenderextending its Commitment).
(gc) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, Bank may furnish any information relating concerning the Company in the possession of such Bank from time to the Borrowers furnished time to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lenderassignees and participants (including prospective assignees and participants).
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Sources: Credit Agreement (Plexus Corp)
Assignment; Participations. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns, except that the Borrower may not assign or transfer its rights or obligations hereunder. The Lender may assign, or sell participations in, all or any part of any Loan to another lender or other entity, in which event (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a upon notice thereof by the Lender or an assignment of all of a Lender's rights and obligations under this Agreementto the Borrower, the amount assignee shall have, to the extent of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuingunless otherwise provided therein), the consent of same rights, benefits and obligations as it would have if it were the Borrowers shall not be requiredLender hereunder; and (vb) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Registercase of a participation, an Assignment the participant shall have no rights under the Facility Documents and Acceptance, together with all amounts payable by the Borrower under Article III shall be determined as if the Lender had not sold such participation. The agreement executed by the Lender in favor of the participant shall not give the participant the right to require the Lender to take or omit to take any Note or Notes subject action hereunder except action directly relating to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be extension of a party hereto and, payment date with respect to any portion of the extent that rights and obligations principal of or interest on any amount outstanding hereunder have been assigned to it pursuant allocated to such Assignment and Acceptanceparticipant, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition reduction of the Borrowers principal amount outstanding hereunder or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies the reduction of the financial statements referred to in sections 5.05 and 6.08(a) and rate of interest payable on such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender amount or any other amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with the Lender. The Lender and based on such documents and may furnish any information as it shall deem appropriate at concerning the time, continue to make its own credit decisions Borrower in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all possession of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time to assignees and participants (the "REGISTER"). The entries in the Register shall be conclusive including prospective assignees and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(eparticipants) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall which have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent agreed in writing to such Lenderbe bound by the provisions of Section 10.13 hereof.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Sources: Credit Agreement (Universal American Financial Corp)
Assignment; Participations. This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Lender and their respective successors and assigns, except that the Borrower may not assign or transfer its rights or obligations hereunder. Subject to the consent of the Insurance Commissioner, if required, the Lender may (a) Each Lender sell participations in any Loan, (b) upon ten (10) days’ notice to the Borrower may assign all, but not a part, of any Loan to one or more Eligible Assignees another lender, (c) without notice to the Borrower may assign all or a portion any part of its rights and obligations under this Agreement any Loan to any Affiliate of the Lender, or (includingd) with the prior written consent of the Borrower, without limitationwhich consent will not unreasonably be withheld, all or an undivided portion of may assign less than all of its Revolving Credit Commitmentany Loan to another lender, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that in which event (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto andhave, to the extent that rights of such assignment (unless otherwise provided therein), the same rights, benefits and obligations hereunder as it would have been assigned to if it pursuant to such Assignment and Acceptance, have were the rights and obligations of a Lender hereunder hereunder; and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all a participation, the participant shall have no rights under this Agreement or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, Note. The agreement executed by the Lender assignor thereunder and in favor of any participant shall not give such participant the assignee thereunder confirm right to and agree with each other and require the other parties hereto as follows: Lender to take or omit to take any action hereunder except action directly relating to (ia) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility the extension of a regularly scheduled payment date with respect to any statementsportion of the principal of or interest on any amount outstanding hereunder allocated to such participant, warranties (b) the reduction of the principal amount allocated to such participant or representations made in or in connection with this Agreement (c) the reduction of the rate of interest payable on such amount or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of fees payable hereunder to a rate or amount, as the Loans owing case may be, below that which the participant is entitled to each receive under its agreement with the Lender. The Lender may furnish any information concerning the Borrower in the possession of Lender from time to time to assignees and participants (the "REGISTER"). The entries in the Register shall be conclusive including prospective assignees and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by itparticipants); PROVIDED, HOWEVER, provided that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of require any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the prospective assignee or such participant (prospective or proposed assignee oR participant, any information relating otherwise) to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve maintain the confidentiality of any confidential such information received by it from such Lender.
(h) Notwithstanding any other provision in accordance with the provisions set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve SystemSection 8.15.
Appears in 1 contract
Assignment; Participations. Each Bank may, with the prior written consent of the Borrower (awhich may be unreasonably withheld) Each Lender may and the Agent, assign to one or more Eligible Assignees eligible assignees all or a portion of its interests, rights and obligations under this Agreement (including, without limitation, all or an undivided a portion of all of its Revolving Credit Commitment, Revolving Credit Loans the Advances at the time owing to it and Term Loans and all the Notes held by it); PROVIDED, HOWEVER, that (ia) each such assignment shall be of a uniformconstant, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lenderassigning Bank's rights and obligations under this Agreement, (b) the amount of the Revolving Credit Commitment Percentage of the assigning Lender being assigned pursuant Bank subject to each such assignment (determined as of the date of the Assignment and Acceptance with 39 respect to such assignmentassignment is delivered to the Agent) shall in no event be less than $5,000,000; (iii) each such assignment shall 5,000,000 and must be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent in multiples of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing$1,000,000, the consent of the Borrowers shall not be required; and (vc) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Registeracceptance, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) assignment. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such each Assignment and Acceptance, which effective date shall be at least five Business Days after the execution thereof, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder Bank hereunder, and (ii) the Lender assignor assigning Bank thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to provided in such Assignment and Acceptanceassignment, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or . Notwithstanding any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy provision of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or Borrower understands that any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender Bank may at any time create a security interest in all enter into participation agreements with one or any portion more participating banks whereby such Bank will allocate certain percentages of its rights under Commitment to such bank or banks. The Borrower acknowledges that, for the convenience of all parties, this Agreement (includingis being entered into with the Banks only and that Borrower's obligations hereunder are undertaken for the benefit of, without limitationand as an inducement to, any such participating bank as well as the Banks, and the Borrower hereby grants to each participating bank, to the extent of its participation in the Commitment, the Loans owing right to it and set off deposit accounts maintained by the Note Borrower with such bank, provided that such participating banks shall not become "Banks" hereunder, or Notes held by it) in favor of be entitled to directly exercise any Federal Reserve Bank in accordance with Regulation A of the Board of Governors rights or remedies of the Federal Reserve SystemBanks hereunder.
Appears in 1 contract
Assignment; Participations. (a) Each Lender This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Agent, the Banks and their respective successors and assigns, except that the Borrower may not assign to one or more Eligible Assignees all or a portion of transfer its rights and or obligations under this Agreement (includinghereunder. Each Bank may assign, without limitationor sell participations in, all or an undivided portion of all any part of its Revolving Credit CommitmentCommitment or any Loan to another bank or other entity, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that in which event (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was upon notice thereof by the Bank to the Borrower with a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver copy to the Agent, for its acceptance the assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights, benefits and recording obligations as it would have if it were a Bank hereunder; and (ii) in the Registercase of a participation, an Assignment the participant shall have no rights under the Facility Documents and Acceptanceall amounts payable by the Borrower under Article 3 shall be determined as if such Bank had not sold such participation. The agreement executed by such Bank in favor of the participant shall not give the participant the right to require such Bank to take or omit to take any action hereunder except action directly relating to (i) the extension of the Termination Date, together (ii) the extension of a payment date with respect to any Note portion of the principal of or Notes subject interest on any amount outstanding hereunder, or with respect to any Commitment fees, allocated to such assignment participant, (iii) the reduction of the principal amount outstanding hereunder or (iv) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with such Bank. Such Bank may furnish any information concerning the Borrower in the possession of such Bank from time to time to assignees and a processing participants (including prospective assignees and recordation fee participants); provided that such Bank shall require any such prospective assignee or such participant (prospective or otherwise) to agree to maintain the confidentiality of $3,500such information.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights assignments and obligations hereunder have been assigned to it pursuant to such Assignment participations permitted under paragraph (a) above, any Bank may assign and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; Bank or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
Appears in 1 contract
Assignment; Participations. (a) Each Lender This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Agent, the Banks and their respective successors and assigns, except that neither the Borrower nor any Bank may assign its rights or obligations, or transfer participations, hereunder other than as specifically permitted in this Section 11.05. Notwithstanding the foregoing, (i) provided that it obtains the prior written consent of the Borrower, which consent may not be unreasonably withheld or delayed, each Bank may transfer participations in all or any part of its Commitment, in principal amounts aggregating at least $5,000,000, to one or more Eligible Assignees other banks or other entities, and (ii) each Bank may transfer participations in all or a portion any part of its Loans to one or more banks or other entities; provided, in each case, that the participant(s) shall have no rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans the Facility Documents and all Notes held amounts payable by itthe Borrower under Article 3 shall be determined as if such Bank had not sold such participation(s); PROVIDED, HOWEVER, that . The agreement executed by any such Bank in favor of any participant shall not give the participant the right to prevent such Bank from taking any action hereunder except action directly relating to (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect the extension of the Revolving Credit CommitmentsTermination Date, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all extension of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the payment date of the Assignment and Acceptance with respect to any portion of the principal, interest or fees allocated to such assignment) shall in no event participant that may be less than $5,000,000; outstanding or payable hereunder, (iii) each such assignment shall be to an Eligible Assignee; the reduction of the principal amount outstanding hereunder or (iv) no such assignments shall be permitted without the consent reduction of the Agent and rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the Borrowers (not case may be, below that which the participant is entitled to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, receive under its agreement with such Bank. Such Bank may furnish any information concerning the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording Borrower in the Register, an Assignment and Acceptance, together with possession of such Bank from time to time to participants (including prospective participants); provided that such Bank shall require any Note or Notes subject such prospective participant to agree to maintain the confidentiality of such assignment and a processing and recordation fee of $3,500information.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights participations permitted under Section 11.05(a), any Bank may assign and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; Bank or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
(c) As used on this Section 11.05, (i) the term "participation" shall mean an undivided interest in the Commitment, or in one or more Loans, of a Bank, provided, that in acquiring such undivided interest the holder thereof acquires no rights under any Facility Document and no rights against any party thereto other than the transferor of such undivided interest; and (ii) the terms "assign" and "assignment" relate to transfers of an interest in the Commitment, or in one or more Loans, of a Bank, or of obligations of a Bank, pursuant to which the transferee acquires rights or obligations under one or more Facility Documents and rights against or obligations to one or more parties thereto.
Appears in 1 contract
Assignment; Participations. (a) Each Lender Subject to that certain side letter between the Buyer and ABFS dated as of the date hereof regarding assignments and participations, the Buyer may from time to time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement and the Program Documents; provided, that the Buyer shall maintain, for review by the Seller upon written request, a register of assignees and a copy of an executed assignment and acceptance by the Buyer and its assignee (includingan "Assignment and Acceptance"), without limitation, all specifying the percentage or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to assigned. Upon such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each (a) such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, and to each Program Document to the extent that rights and obligations hereunder have been assigned to it pursuant to such of the percentage or portion set forth in the Assignment and Acceptance, have and shall succeed to the applicable rights and obligations of a Lender hereunder the Buyer hereunder, and (iib) the Lender assignor thereunder Buyer shall, to the extent that such rights and obligations hereunder have been so assigned by it pursuant to such Assignment and Acceptanceeither (i) an Affiliate of the Buyer which assumes the obligations of the Buyer or (ii) to another Person which assumes the obligations of the Buyer, relinquish its rights and be released from its obligations hereunder and under this Agreement (and, the Program Documents. Unless otherwise stated in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and Seller shall continue to take directions solely from the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect Buyer. The Buyer may distribute to any statements, warranties prospective assignee any document or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect information delivered to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance Buyer by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderSeller.
(db) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender Buyer may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any a portion of its their rights and obligations under this Agreement (includingAgreement; provided, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVERhowever, that (i) such Lenderthe Buyer's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; , (ii) such Lender the Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations; and (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders Seller shall continue to deal solely and directly with such Lender the Buyer in connection with such Lenderthe Buyer's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(gc) Any Lender The Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05Section 28, disclose to the assignee or participant or proposed assignee oR participant, as the case may be, any information relating to the Borrowers Seller or any of its Subsidiaries or to any aspect of the Transaction that has been furnished to such Lender the Buyer by or on behalf of the BorrowersSeller or any of its Subsidiaries; PROVIDED, HOWEVER, that, prior provided that such participant agrees to any hold such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing information subject to preserve the confidentiality provisions of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Sources: Master Repurchase Agreement (American Business Financial Services Inc /De/)
Assignment; Participations. (a) Each Lender This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Bank and their respective successors and assigns, except that the Borrower may not assign to one or more Eligible Assignees all or a portion of transfer its rights and or obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500hereunder.
(b) The Bank may, with the consent of the Borrower (which consent will not be unreasonably withheld or delayed) assign all or any part of its Commitments, its Note or Loans to another bank or other Person. Upon execution and delivery by the assignee to the Borrower of an instrument in writing pursuant to which such execution, delivery, acceptance assignee agrees to become a "Bank" hereunder having the Commitment and recording, from and after the effective date Loans specified in such Assignment instrument, and Acceptance, (i) upon consent thereto by the assignee thereunder shall be a party hereto andBorrower, to the extent that required above, the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the Borrower), the obligations, rights and obligations hereunder have been assigned to it pursuant to such Assignment benefits of the Bank and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptanceof assignment, relinquish its rights and be released from its obligations under this Agreement the Commitment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto)thereof) so assigned.
(c) By executing The Bank may sell or agree to sell to one or more banks or other Persons a participation in all or any part of any Loans held by it, or in its Commitment, in which event each purchaser of a participation (a "Participant") shall not have any rights or benefits under this Agreement or any Note (the participant's rights against the Bank in respect of such participation to be those set forth in the agreements executed by the Bank in favor of the Participant). All amounts payable by the Borrower to the Bank under Section 2 hereof in respect of Loans held by it and delivering an Assignment its Commitment, shall be determined as if the Bank had not sold or agreed to sell any participations in such Loan and AcceptanceCommitment, and as if the Lender assignor thereunder Bank were funding each of such Loan and Commitment in the assignee thereunder confirm same way that it is funding the portion of such Loan and Commitment in which no participations have been sold. The agreement executed by the Bank in favor of the Participant shall not give the Participant the right to and agree with each other and require the other parties hereto as follows: Bank to take or omit to take any action hereunder except action directly relating to (i) other than as provided in such Assignment and Acceptancethe extension of the Termination Date, such assigning Lender makes no representation or warranty and assumes no responsibility (ii) the extension of a payment date with respect to any statements, warranties or representations made in or in connection with this Agreement fees payable hereunder or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition portion of the Borrowers principal of or interest on any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; amount outstanding hereunder allocated to such participant, (iii) such assignee confirms that it has received a copy of this Agreement, together with copies the reduction of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; principal amount outstanding hereunder, or (iv) the reduction of the rate of interest payable on such assignee will, independently and without reliance upon the Agent, such assigning Lender amount or any other Lender and based on such documents and information amount of fees payable hereunder to a rate or amount, as it shall deem appropriate at the timecase may be, continue below that which the Participant is entitled to make receive under its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes agreement with the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank.
(d) The Agent shall maintain at its address referred In addition to in section 12.06 a copy of each Assignment the assignments and Acceptance delivered to participations permitted under paragraphs (b) and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowersc) above, the Agent Bank may assign and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (includingBank, without limitation, its Revolving Credit Commitment) shall remain unchanged; or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any operating circular issued by such Federal Reserve Bank. No such assignment shall release the Bank from its obligations hereunder.
(e) The Bank may furnish any information concerning the Borrower or any of its Subsidiaries in the possession of the Bank from time to time to assignees and participants (including prospective assignees and participants), provided that the Bank shall require any assignee or participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information.
Appears in 1 contract
Sources: Credit Agreement (Hardinge Inc)
Assignment; Participations. This Agreement shall be -------------------------- binding upon, and ,shall inure to the benefit of, the Borrower, the Bank and their respective successors and assigns, except that no Borrower may assign or transfer its rights or obligations hereunder. The Bank may assign, or sell participations in, all or any part of any Loan to another bank or other entity, in minimum amounts of $5,000,000, in which event (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreementupon notice thereof by the Bank to the Borrower, the amount assignee shall have, to the extent of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuingunless otherwise provided therein), the consent of same rights, benefits and obligations as it would have if it were the Borrowers shall not be requiredBank hereunder; and (vb) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Registercase of a participation, an Assignment and Acceptance, together with the participant shall have no rights under the Facility Documents. The agreement executed by the Bank in favor of the participant shall not give the participant the right to require the Bank to take or omit to take any Note or Notes subject action hereunder except action directly relating to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be extension of a party hereto and, payment date with respect to any portion of the extent that rights and obligations principal of or interest on any amount outstanding hereunder have been assigned to it pursuant allocated to such Assignment and Acceptanceparticipant, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition reduction of the Borrowers principal amount outstanding hereunder or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies the reduction of the financial statements referred to in sections 5.05 and 6.08(a) and rate of interest payable on such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender amount or any other Lender and based on such documents and amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with the Bank. The Bank may furnish any information as it shall deem appropriate at concerning the time, continue to make its own credit decisions Borrower in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all possession of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender Bank from time to time to assignees and participants (the "REGISTER"). The entries in the Register shall be conclusive including prospective assignees and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by itparticipants); PROVIDED, HOWEVER, provided that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) the Bank shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of require any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the prospective assignee or such participant (prospective or proposed assignee oR participant, any information relating otherwise) to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve maintain the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may information. The Bank shall have the right at any time create to pled a security interest in all or any portion of its rights under the Loans or this Agreement (including, without limitation, the Loans owing to it and or the Note or Notes held by itto any of the twelve (12) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors Banks organized under Section 4 of the Federal Reserve System.Act, 12 U.S.
Appears in 1 contract
Assignment; Participations. (a) Each Lender This Agreement shall be binding upon and inure to the benefit of the Borrower and the Bank and their respective successors and assigns; provided, however, that the Borrower may not assign to one or more Eligible Assignees all or a portion any of its rights and or obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the prior written consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500Bank.
(b) Upon such executionWith the consent of the Borrower (which consent shall not be unreasonably withheld), delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that Bank may at any time assign or otherwise transfer its Grid Note or any of its rights and or obligations hereunder have been assigned to it pursuant to in whole or in part provided, however, that no such Assignment and Acceptance, have assignment or transfer shall result in any additional liability of the rights and obligations Borrower on account of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all United States Taxes or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).for increased costs under
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders Bank may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations grant to one or more Persons banks or other institutions (other than the Borrowers each a "Participant") participating interests in its Commitment or any or all of their Affiliatesits Advances provided that the Bank shall not grant a participation in its Commitment unless (A) in or such participation involves an amount equal to all $1,000,000 or any portion greater multiple of its rights $500,000 and obligations under this Agreement (includingB) after giving effect thereto the Bank has either no remaining unparticipated Commitment or an unparticipated Commitment of at least $1,000,000. In the event of any such grant by the Bank of a participating interest to a Participant, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) the Bank shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowersits obligations hereunder, the Agent and the other Lenders Borrower shall continue to deal solely and directly with such Lender the Bank in connection with such Lenderthe Bank's rights and obligations under this Agreement; (v) no participant under any . Any agreement pursuant to which the Bank may grant such participation a participating interest shall have any provide that the Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower hereunder including, without limitation, the right to approve any amendment amendment, modification or waiver of any provision of any Facility Documentthis Agreement. Each Participant shall be entitled to the benefits of Sections 6, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except 14 and 15 hereof to the extent that such amendment, waiver or consent the Bank would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject be entitled to such participation, postpone any date fixed for any payment of principal of, or interest on, benefits if the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have participation had not been approved by the Agent in writing to such Lendergranted.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Sources: Revolving Credit Agreement (New Jersey Resources Corp)
Assignment; Participations. (a) Each Lender Upon thirty (30) days prior notice to the Borrower and with the written consent of the Agent and the Borrower (which consent shall not be unreasonably withheld), each Bank may assign to one or more Eligible Assignees commercial banks or financial institutions all or a portion of its rights and obligations under this Agreement (including, including without limitation, all or an undivided a portion of all of its Commitment and the amounts under the Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by owing to it); PROVIDEDprovided, HOWEVERhowever, that (i) each such assignment shall be of a uniformconstant, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lenderassigning Bank's rights and obligations under this Agreement, (ii) the amount of the Revolving Credit Commitment of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Acceptance) with respect to such assignment) assignment shall in no event be less than $5,000,000; 5,000,000 and shall be an integral multiple of $500,000 (or in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Bank's rights and obligations under this Agreement, any lesser increment), and (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the RegisterRegister (as defined in (c) below), an Assignment and AcceptanceAcceptance and a $3,500 non-refundable processing fee from the assigning Bank. Notwithstanding the foregoing, together no written consent of the Borrower shall be required in connection with any Note assignment by a Bank to an Affiliate of such Bank of all or Notes subject to such assignment a portion of its rights and a processing and recordation fee of $3,500.
(b) obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall be a Bank party hereto and, to the extent that rights and obligations (including any portion of any Commitment) hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank hereunder and (iiy) the Lender Bank assignor thereunder shall, to the extent that rights and obligations (including any portion of any Commitment) hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights to indemnification under Section 9.3) and be released from its obligations under this Agreement arising after the date of assignment (and, in the case of an Assignment and Acceptance assignment covering all or the remaining portion of an assigning LenderBank's rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto.).
(cb) By executing and delivering an Assignment and Acceptance, the Lender Bank assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or theretohereto; (ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries Borrower or the performance or observance by the Borrowers or their Subsidiaries Borrower of any of their its obligations under any Facility Document this Agreement or any other instrument or document furnished pursuant theretohereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in sections 5.05 and 6.08(a) Section 5.8 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender Bank or any other Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent Agent on its behalf and to exercise such powers under this Agreement and discretion under the other Loan Documents as are delegated to the Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (viivi) such assignee agrees that it will perform in accordance with their the terms all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank; and (vii) such assignee represents that such assignment will not result in any Prohibited Transaction.
(dc) The Agent shall maintain at its address referred to in section 12.06 set forth on the signature pages hereto a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders Banks and the Revolving Credit Commitment of, and principal amount of the Revolving Loans owing to to, each Lender Bank from time to time (the "REGISTERRegister"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowersBorrower, the Agent and the Lenders Banks may treat each Person whose name is recorded in the Register as a Lender Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers Borrower or any Lender Bank at any reasonable time and from time to time upon reasonable prior notice.
(ed) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Bank and an its assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I heretoE, (i) accept such Assignment and Acceptance; , (ii) record the information contained therein in the Register; Register and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectivelyBorrower.
(fe) Each Lender Bank may sell participations to one or more Persons (banks or other than the Borrowers or any of their Affiliates) entities in or to all or any a portion of its rights and obligations under this Agreement (including, including without limitation, all or a portion of its Commitment and the amounts under the Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by owing to it); PROVIDEDprovided, HOWEVERhowever, that (i) such LenderBank's obligations under this Agreement (including, including without limitation, its Revolving Credit CommitmentCommitment to the Borrower hereunder) shall remain unchanged; , (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations; obligations and (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the BorrowersBorrower, the Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank's rights and obligations under this Agreement; (v) PROVIDED, that no Bank shall transfer or grant any participation under which the participant under any such participation shall have any the right to approve any amendment to or waiver of any provision of any Facility Document, this Agreement or any consent to any departure by the Borrowers or any of their Subsidiaries therefromRevolving Note, except with respect to an extension of the extent that such amendment, waiver final maturity of the Revolving Loans or consent would reduce a reduction of the principal of, amount of or the rate of interest on, payable on the Notes Revolving Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lenderrelated thereto.
(gf) Any Lender Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05Section 9.5, disclose to the assignee or participant or proposed assignee oR participant, or participant any information relating to the Borrowers Borrower furnished to such Lender Bank by or on behalf of the BorrowersBorrower; PROVIDED, HOWEVER, provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information relating to the Borrower received by it from such LenderBank.
(hg) Notwithstanding Nothing herein shall prohibit any other provision set forth in this Agreement, any Lender may at any time create a security interest in Bank from pledging or assigning all or any portion of its such Bank's rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any other Loan Documents to a Federal Reserve Bank; PROVIDED, HOWEVER, that no such pledge or assignment or enforcement thereof shall release such Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Systemfrom its obligations hereunder or under any other Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Core Inc)
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Borrowers, the Agent, the Lenders and their respective successors and assigns, except that the Borrowers may not assign or transfer its rights or obligations hereunder. Each Lender may assign to one assign, or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitationsell participations in, all or an undivided portion of all any part of its Revolving Credit Commitmentcommitment or any Loan to another bank or other entity, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that in which event (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was upon notice thereof by the Lender to the Borrowers with a Lender or an assignment of all of a Lender's rights and obligations under this Agreementcopy to the Agent, the amount assignee shall have, to the extent of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (unless otherwise provided therein), the same rights, benefits and obligations as it would have if it were a Lender hereunder; and (ii) in the case of a participation, the participant shall have no rights under the Facility Documents and all amounts payable by the Borrowers under 2.10, 2.11 and 2.14 shall be determined as of the date of the Assignment and Acceptance with respect to if such assignment) shall in no event Lender had not sold such participation. No assignment can be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted made without the consent of the Agent Borrowers and the Borrowers Agent (which consents will not to be unreasonably withheld) except or in a principal amount which is less than $5,000,000 ; provided further that if a Default or Event of Default shall have occurred and be continuing, the no consent of the Borrowers to any assignment shall be required after the occurrence of an Event of Default which shall be continuing. The agreement executed by a Lender in favor of any participant shall not give the participant the right to require such Lender to take or omit to take any action hereunder except action directly relating to (i) the extension of the Revolving Credit Termination Date, (ii) the extension of a payment date with respect to any portion of the principal of or interest on any amount outstanding hereunder allocated to such participant, (iii) the reduction of the principal amount outstanding hereunder or (iv) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with such Lender. Such Lender may furnish any information concerning the Borrowers in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants) with the prior written consent of the Borrowers, which consent shall not be requiredunreasonably withheld; and provided that such Lender shall require any such prospective assignee or such participant (vprospective or otherwise) to agree in writing to maintain the parties confidentiality of such information. In connection with any assignment pursuant to each such assignment this paragraph (a), an administrative fee in the amount of $2,500 shall execute and deliver be paid to the Agent, Agent by the assignee for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to processing such assignment and a processing and recordation fee of $3,500assignment.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights assignments and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptanceparticipations permitted under paragraph (a) above, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time may assign and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any Affiliate of such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; Lender or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Lender as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Lender. No such assignment shall release the assigning Lender from its obligations hereunder.
Appears in 1 contract
Sources: Credit Agreement (Gleason Corp /De/)
Assignment; Participations. (a) Each Lender Bank may assign sell, negotiate or grant participations to one or more Eligible Assignees other financial institutions in all or a portion part of the obligations of the Borrower outstanding under the Loan Documents without notice to or the approval of Borrower; provided that any such sale, negotiation or participation shall be in compliance with the applicable federal and state securities laws and the other requirements of this Section 12.
1. Notwithstanding the sale, negotiation or grant of participations, Bank shall remain solely responsible for the performance of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, and Borrower shall continue to deal solely and directly with Bank in connection with this Agreement and the other Loan Documents.
(b) The grant of a participation interest shall be on such terms as the Bank determines are appropriate, provided only that (1) the holder of such a participation interest shall not have any of the rights of Bank under this Agreement except, if the participation agreement so provides, rights to demand the payment of costs of the type described in Section 2.6, provided that the aggregate amount that the Borrower shall be required to pay under Section 2.6 with respect to any ratable share of the Committed Line or any Advance (including amounts paid to participants) shall not exceed the amount that Borrower would have had to pay if no participation agreements had been entered into, and (2) the consent of the holder of such a participation interest shall not be required for amendments or waivers of provisions of the Loan Agreement other than those which (i) increase the amount of the Revolving Credit Commitment Committed Line, (ii) extend the term of this Agreement, (iii) decrease the rate of interest or the amount of any fee or any other amount payable to Bank under this Agreement, (iv) reduce the principal amount payable under this Agreement, or (v) extend the date fixed for the payment of principal or interest or any other amount payable under this Agreement.
(c) The Bank may assign, from time to time, all or any portion of its pro rata share of the assigning Lender Committed Line to an Affiliate of the Bank or to any Federal Reserve Bank, or, subject to the prior written approval of Borrower (which approval will not be unreasonably withheld), to any other financial institution; provided, that with respect to an assignment that is subject to the prior approval of Borrower (i) the amount of the Committed Line being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing1,000,000, the consent of the Borrowers shall not be required; and (vii) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording Borrower an assignment agreement in the Register, an Assignment and Acceptance, together with any Note or Notes subject a form reasonably acceptable to such assignment and a processing and recordation fee of $3,500.
(b) each. Upon such execution, execution and delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.such
Appears in 1 contract
Sources: Loan and Security Agreement (Nuko Information Systems Inc /Ca/)
Assignment; Participations. (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit CommitmentCommitments, Revolving Credit Loans and Term Loans Loans, and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans Commitments and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (such consent not to be unreasonably withheld) except that if a Default withheld or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be requireddelayed); and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, substantially in the form of EXHIBIT G, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document loan document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) SECTION 6.08 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Facility Documents as are delegated to the Agent by the terms hereof, hereof together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 JPMorgan Chase Office a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I heretocompleted, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five (5) Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms form of EXHIBITS A-1 and A-2 hereto, respectivelyEXHIBIT A or EXHIBIT B as applicable.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans Commitments or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Subject to the provisions of SECTION 12.06, any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. SECTION 12.05, disclose to the assignee or participant or proposed assignee oR or participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.A.
Appears in 1 contract
Sources: Credit Agreement (Hawk Corp)
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Agent, the Banks and their respective successors and assigns, except that the Borrower may not assign or transfer its rights or obligations hereunder. Each Lender Bank may assign (subject to one the prior written consent of the Borrower, which shall not be unreasonably withheld), or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitationsell participations in, all or an undivided portion of all any part of its Revolving Credit Commitmentcommitment or the Loan to another bank or other entity, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that in which event (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was upon notice thereof by the Bank to the Borrower with a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver copy to the Agent, for the assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights, benefits and obligations as it would have if it were a Bank hereunder and the assigning Bank shall be released from its acceptance obligations hereunder to the extent of such assignment; and recording (ii) in the Registercase of a participation, the participant shall have no rights under the Facility Documents and all amounts payable by the Borrower under Article 3 shall be determined as if such Bank had not sold such participation. The agreement executed by such Bank in favor of the participant shall not give the participant the right to require such Bank to take or omit to take any action hereunder except action directly relating to (i) the extension of the Termination Date, (ii) the extension of a payment date with respect to any portion of the principal of or interest on any amount outstanding hereunder allocated to such participant, (iii) the reduction of the principal amount outstanding hereunder or (iv) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with such Bank. Such Bank may furnish any information concerning the Borrower in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants); provided that such Bank shall require any such prospective assignee or such participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information. In connection with any assignment pursuant to this paragraph (a), an Assignment and Acceptance, together with any Note or Notes subject administrative fee shall be paid to the Agent for processing such assignment and a processing and recordation fee in the amount of $3,5003,000.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights assignments and obligations hereunder have been assigned to it pursuant to such Assignment participations permitted under paragraph (a) above, any Bank may assign and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; Bank or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank. No such assignment under clause (ii) of the preceding sentence shall release the assigning Bank from its obligations hereunder.
Appears in 1 contract
Assignment; Participations. (a) Each Lender This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Bank and their respective successors and assigns, except that the Borrower may not assign to one or more Eligible Assignees all or a portion of transfer its rights and or obligations under this Agreement (includinghereunder. The Bank may assign, without limitationor sell participations in, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect any part of the Revolving Credit CommitmentsCommitment or any Loan to another bank or other entity which is not a competitor of the Borrower or its Subsidiaries, Revolving Credit Loans and Term Loans; in which event (iii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreementupon notice thereof by the Bank to the Borrower, the amount assignee shall have, to the extent of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined unless otherwise provided therein), the same rights, benefits and obligations as it would have if it were the Bank hereunder; and (ii) in the case of a participation, the participant shall have no rights under the Facility Documents. The agreement executed by the Bank in favor of the participant shall not give the participant the right to require the Bank to take or omit to take any action hereunder except action directly relating to (i) the extension of a payment date of the Assignment and Acceptance with respect to any portion of the principal of or interest on any amount outstanding hereunder allocated to such assignmentparticipant, (ii) shall in no event be less than $5,000,000; the reduction of the principal amount outstanding hereunder or (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent reduction of the Agent and rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the Borrowers (not case may be, below that which the participant is entitled to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, receive under its agreement with the consent Bank. The Bank may furnish any information concerning the Borrower in the possession of the Borrowers shall not be required; Bank from time to time to assignees and participants (v) the parties to each such assignment shall execute including prospective assignees and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.participants);
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights assignments and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and participations permitted under paragraph (iia) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptanceabove, the Lender assignor thereunder Bank may assign and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; any affiliate of the Bank or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the Bank from its obligations hereunder.
Appears in 1 contract
Assignment; Participations. (a) Each This Agreement shall be binding upon, and shall inure to the benefit of, Micro Warehouse, the Subsidiary Borrowers, the Subsidiary Guarantors, the Administrative Agent, the Lenders and their respective successors and assigns, except that none of the Obligors may not assign or transfer their rights or obligations hereunder. So long as any assignment or participation by any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Letters of Credit Commitmentsshall require the prior consent of the Issuing Lender such consent not to be unreasonably withheld, Revolving Credit Loans and Term Loans; each Lender may assign, or sell participations in, all or any part of any Obligation to another bank or other entity, in which event (iii) except in the case of an assignment to a Person that, immediately prior to such assignment, was upon notice thereof by the Lender to Micro Warehouse with a Lender or an assignment of all of a Lender's rights and obligations under this Agreementcopy to the Administrative Agent, the amount assignee shall have, to the extent of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuingunless otherwise provided therein), the consent of the Borrowers shall not be requiredsame rights, benefits and obligations as it would have if it were a Lender hereunder; and (vii) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Registercase of a participation, an Assignment the participant shall have no rights under the Facility Documents and Acceptance, together with all amounts payable by the Borrowers under Articles 2 and 3 shall be determined as if such Lender had not sold such participation. The agreement executed by such Lender in favor of the participant shall not give the participant the right to require such Lender to take or omit to take any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.action
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights assignments and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptanceparticipations permitted under paragraph (a) above, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time may assign and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Revolving Credit Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; Lender or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Lender from its obligations hereunder.
Appears in 1 contract
Assignment; Participations. (a) Each Lender This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Agent, the Banks and their respective successors and permitted assigns. The Borrower may not assign or transfer its rights or obligations hereunder. Any Bank may at any time grant to one or more Eligible Assignees all banks or other institutions (each a "Participant") participating interests in its portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case event of any assignment such grant by a LenderBank of a participating interest to a Participant, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) Bank shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain its obligations hereunder, and the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, Borrower and the Agent and the other Lenders shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank's rights and obligations hereunder.
(b) Any Bank may at any time assign to one or more banks or other institutions (each an "Assignee") all, or a proportionate part of all, of its rights and obligations under this Agreement; (v) no participant under any Agreement and its Revolving Notes, and such participation Assignee shall assume rights and obligations, pursuant to an Assignment and Assumption Agree- ment executed by such Assignee and such Bank, with and subject to the consent of the Agent. Upon execution and delivery of such instrument and payment by such Assignee to such Bank of an amount equal to the purchase price agreed between such Bank and such Assignee, 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 such Bank shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any right to approve any amendment or waiver party shall be required. Upon the consummation of any provision of any Facility Documentassignment pursuant to this Section, a new Revolving Note or any consent to any departure Revolving Notes shall be issued by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such LenderBorrower.
(gc) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender Bank may at any time create a security interest in assign all or any portion of its rights under this Agreement and its Revolving Notes to a Federal Reserve Bank. No such assignment shall release the transferor Bank from its obligations hereunder.
(including, without limitation, d) The Borrower agrees to provide all assistance reasonably requested by a Bank to enable such Bank either to sell participations in or make assignments of its portion of the Loans owing to it and the Note or Notes held as permitted by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Systemthis Section 12.15.
Appears in 1 contract
Sources: Credit and Security Agreement (Winstar Communications Inc)
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Administrative Agent, the Banks and their respective successors and assigns, except that the Borrower may not assign or transfer its rights or obligations hereunder without the consent of all of the Banks. Each Lender Bank may assign to one (with the Borrower's consent as set forth below) or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitationsell participations in, all or an undivided portion of all any part of its Revolving Credit CommitmentLoans or Commitments (pro rata) to anothe bank or other entity, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that in which event (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was upon notice thereof by such Bank to the Borrower with a Lender or an assignment of all of a Lender's rights and obligations under this Agreementcopy to the Administrative Agent, the amount assignee shall have, to the extent of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (unless otherwise provided therein), the same rights, benefits and obligations as it would have if it were a Bank hereunder; and (ii) in the case of a participation, the participant shall have no rights under the Facility Documents and all amounts payable by the Borrower under Article 3 shall be determined as of the date of the Assignment and Acceptance with respect if such Bank had not sold such participation. Any assignment pursuant to such assignment) this Section 11.5 shall be in no event be an amount not less than $5,000,000; , shall leave any assigning Bank that remains a "Bank" hereunder with a Commitment of at least $2,000,000 and shall be subject to the prior consent of the Borrower (which shall not be unreasonably withheld), except that (i) no such minimum amount will be required to be transferred or retained and no such prior consent will be required if such assignment is necessary or prudent for regulatory purposes, (ii) no such minimum amount will be required to be transferred and no such prior consent will be required if the transferee is already a "Bank" hereunder and (iii) each no such prior consent will be required if the transferee is a commercial bank that is an affiliate of the assigning Bank. The agreement executed by any Bank in favor of a participant shall not give the participant the right to require such Bank to take or omit to take any action hereu der except action directly relating to (i) the extension of a payment date (including the Termination Date) with respect to any portion of the principal of or interest on any amount outstanding hereunder allocated to such participant, (ii) the reduction of the principal amount outstanding hereunder or (iii) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with such Bank. Such Bank may furnish any information concerning the Borrower in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants); provided that such Bank shall require any such prospective assignee or such participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information. In connection with any assignment pursuant to this paragraph (a), the assigning Bank shall pay the Administrative Agent an administrative fee for processing such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee amount of $3,500, except that such fee will not be required if the assignee is already a "Bank" hereunder or if the assignee is a commercial bank that is an affiliate of the assigning Bank.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights assignments and obligations hereunder have been assigned to it pursuant to such Assignment participations permitted under paragraph (a) above, any Bank may assign and Acceptancepledge, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to without meeting any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any requirements of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; paragraph (iiia) such assignee confirms that it has received a copy of this Agreementabove, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; Bank or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
Appears in 1 contract
Sources: Credit Agreement (Nfo Worldwide Inc)
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Subsidiary Borrower, the Guarantors, the Administrative Agent, the Lenders and their respective successors and assigns, except that the Borrower, the Subsidiary Borrower and the Subsidiary Guarantors may not assign or transfer its rights or obligations hereunder except as otherwise permitted under Section 8.10(c). Each Lender may assign to one or more Eligible Assignees sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all hereunder or an undivided portion of all any part of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under hereunder to another financial institution or other entity; provided that any assignment or participation by any Lender of its rights and obligations in respect of the Revolving Letters of Credit Commitmentsshall require the prior consent of the Issuing Lender, Revolving Credit Loans and Term Loans; such consent not to be unreasonably withheld, in which event (iii) except in the case of an assignment, upon notice thereof by the Lender to the Borrower or Subsidiary Borrower with a copy to the Administrative Agent, the assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights, benefits and obligations as it would have if it were a Lender hereunder; and (ii) in the case of a participation, the participant shall have no rights under the Facility Documents and all amounts payable by the Borrower and the Subsidiary Borrower under Article 4 shall be determined as if such Lender had not sold such participation. The agreement executed by such Lender in favor of the participant shall not give the participant the right to require such Lender to take or omit to take any action hereunder except action directly relating to (i) the extension of a payment date with respect to any portion of the principal of or interest on any amount outstanding hereunder allocated to such participant, (ii) the reduction of the principal amount outstanding hereunder allocated to such participant or (iii) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a Person thatrate or amount, immediately prior as the case may be, below that which the participant is entitled to receive under its agreement with such assignment, was a Lender. Such Lender may furnish any information concerning any LCC Consolidated Entity or an any of their respective affiliates in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall require any such prospective assignee or such participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information. In connection with any assignment of all or sale of a Lender's rights and obligations under participation interest pursuant to this Agreementparagraph (a), the assigning or selling Lender shall pay the Administrative Agent an administrative fee for processing such assignment or participation in the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,5005,000.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights assignments and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptanceparticipations permitted under paragraph (a) above, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time may assign and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes the Obligations held by it); PROVIDED, HOWEVER, that it to (i) any affiliate of such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; Lender or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Lender from its obligations hereunder.
Appears in 1 contract
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Borrowers, the Administrative Agent, the Banks and their respective successors and assigns, except that the Borrowers may not assign or transfer their rights or obligations hereunder. Each Lender Bank may assign to one assign, or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitationsell participations in, all or an undivided portion any part of all of its Revolving Credit Commitmentany Loan or Commitment to another bank or other entity, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that in which event (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was upon notice thereof by the Bank to the Borrowers with a Lender or an assignment of all of a Lender's rights and obligations under this Agreementcopy to the Administrative Agent, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) assignee shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto andhave, to the extent that rights of such assignment (unless otherwise provided therein), the same rights, benefits and obligations hereunder as it would have been assigned to if it pursuant to such Assignment were a Bank hereunder, and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Acceptanceassignment (unless otherwise provided therein), relinquish its rights and be released from its obligations under this Agreement hereunder; and (and, ii) in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptanceparticipation, the Lender assignor thereunder participant shall have no rights under the Facility Documents and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance all amounts payable by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) Article 3 shall be determined as if such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) Bank had not sold such participation and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such LenderBank's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) hereunder shall remain unchanged; (ii) , such Lender shall remain Bank being solely responsible to the other parties hereto for the performance of such obligations; (iii) . Each such Lender assignment shall remain the holder be to an Eligible Assignee and shall be in an amount equal to $5,000,000 or an integral multiple of any $1,000,000 in excess thereof. The agreement executed by such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender Bank in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity favor of the participant shall have been approved by not give the Agent in writing participant the right to require such Lender.
Bank to take or omit to take any action hereunder (g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant such Bank retaining the sole right to this ss. 12.05, disclose to enforce the assignee or participant or proposed assignee oR participant, any information Obligations of the Borrowers relating to the Borrowers furnished Loans and the Notes and to such Lender by approve any amendment, modification, waiver or on behalf provision of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create ) except action directly relating to (i) the extension of a security interest in all or payment date with respect to any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note principal of or Notes held by it) in favor of interest on any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.amount outstanding hereunder 94 88
Appears in 1 contract
Sources: Credit Agreement (Cannondale Corp /)
Assignment; Participations. (a) Each Lender may shall have the right at any time to assign to one or more Eligible Assignees all or Persons (then entitled to receive payments of principal, interest and fees for the account of its lending office under this Agreement free from withholding of Federal income tax) a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided a portion of all of its Revolving Credit Commitment, Revolving Credit the Loans owing to it and Term Loans its rights and all Notes held by it)obligations as a Lender with respect to Letters of Credit) and the other Related Documents; PROVIDEDprovided, HOWEVERhowever, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the RegisterRegister (as hereinafter defined), an Assignment and Acceptance, together with any Note or Notes subject and (ii) after giving effect to such assignment assignment, CIT's Revolving Credit Commitment shall be at least equal to the lesser of (1) $17,500,001 and (2) an amount equal to a processing majority of the aggregate amount of the Revolving Credit Commitments. The Borrower shall pay any and recordation fee all costs and fees that are paid to induce any assignee (other than CIT) under an Assignment and Acceptance to execute such Assignment and Acceptance. Such payment may be charged, at the Agent's sole option, to any account of $3,500.
(b) the Borrowers maintained by the Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such each Assignment and Acceptance, (iA) the assignee thereunder shall be a party hereto and to the other Related Documents and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations (including, without limitation, the obligation to participate in Letters of Credit) of a Lender hereunder and thereunder and (iiB) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(cb) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender the assignor makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Related Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Related Document or any other instrument or document furnished pursuant hereto or theretohereto; (ii) such assigning Lender the assignor makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers Borrower or any of their its Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries Borrower of any of their its obligations under any Facility Document this Agreement or any other instrument or document Related Document furnished pursuant theretohereto; (iii) such assignee confirms that it has received a copy of this AgreementAgreement and the other Related Documents, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this AgreementAgreement and the other Related Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and discretion under the Loan other Related Documents as are delegated to the Agent by the terms hereofthereof, together with such powers and discretion as are reasonably incidental thereto; , and (viivi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Related Documents are required to be performed by it as a Lender.
(dc) The Agent shall maintain at its address referred to in section 12.06 on the signature page hereto, a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount of the Loans owing to to, each Lender from time to time (the "REGISTERRegister"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowersBorrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(ed) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Lender, an assignee Lender, the Agent and an assigneethe Borrower, together with any the Note or Notes subject to such assignmentAssignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I Exhibit A hereto, (i) accept such Assignment and Acceptance; , (ii) give prompt notice thereof to the Borrower and (iii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within Within five Banking Business Days after its receipt of such notice, the BorrowersBorrower, at their its own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, Note a new Notes Note to the order of such Eligible Assignee assignee Lender in amounts an aggregate principal amount equal to the Revolving Credit Commitment and Term Loans assumed assigned by it pursuant to such Assignment and Acceptance andAcceptance, and if the assigning Lender has retained a any Revolving Credit Commitment or any Term Loans hereunder, a new Notes Note to the order of the assigning Lender in amounts an aggregate principal amount equal to the Revolving Credit Commitment and Term Loans retained by it hereunder, in each case prepared by the Agent. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or NotesNote, shall be dated the effective date of the Agent's acceptance of such Assignment assignment and Acceptance acceptance and shall otherwise be in substantially the forms form of EXHIBITS A-1 and A-2 Exhibit D hereto, respectively.
(fe) Each Lender may sell participations to one or more Persons (banks or other than the Borrowers or any of their Affiliates) entities in or to all or any a portion of its rights and obligations under this Agreement and the other Related Documents (including, without limitation, all or a portion of its Revolving Credit CommitmentsCommitment and the Loans owing to it and its participation in Letters of Credit), Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, provided that (i1) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit CommitmentCommitment hereunder) and the other Related Documents shall remain unchanged; (ii2) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain , and the holder of any such Note for all purposes of this Agreement; (iv) the BorrowersBorrower, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by Agreement and the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the CollateralRelated Documents; and (vi3) the identity a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the participant shall have been approved by maturity dates of the Agent Loans, or (B) action directly effecting an increase of any of the Revolving Credit Commitments or principal amounts of Loans or a decrease in writing to such Lenderthe rate of interest payable on the Loans.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(hf) Notwithstanding any other provision set forth in the foregoing provisions of this AgreementSection 11.13, any each Lender may at any time create a security interest in sell, assign, transfer, or negotiate all or any portion part of its rights and obligations under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor Related Document to any Affiliate of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Systemsuch Lender.
Appears in 1 contract
Assignment; Participations. (a) Each Lender Subject to that certain side letter between the Buyer and ABFS dated as of the Interim Closing Date regarding assignments and participations, the Buyer may from time to time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement and the Program Documents; provided, that the Buyer shall maintain, for review by the Seller upon written request, a register of assignees and a copy of an executed assignment and acceptance by the Buyer and its assignee (includingan "Assignment and Acceptance"), without limitation, all specifying the percentage or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to assigned. Upon such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each (a) such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, and to each Program Document to the extent that rights and obligations hereunder have been assigned to it pursuant to such of the percentage or portion set forth in the Assignment and Acceptance, have and shall succeed to the applicable rights and obligations of a Lender hereunder the Buyer hereunder, and (iib) the Lender assignor thereunder Buyer shall, to the extent that such rights and obligations hereunder have been so assigned by it pursuant to such Assignment and Acceptanceeither (i) an Affiliate of the Buyer which assumes the obligations of the Buyer or (ii) to another Person which assumes the obligations of the Buyer, relinquish its rights and be released from its obligations hereunder and under this Agreement (and, the Program Documents. Unless otherwise stated in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and Seller shall continue to take directions solely from the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect Buyer. The Buyer may distribute to any statements, warranties prospective assignee any document or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect information delivered to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance Buyer by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderSeller.
(db) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender Buyer may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any a portion of its their rights and obligations under this Agreement (includingAgreement; provided, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVERhowever, that (i) such Lenderthe Buyer's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; , (ii) such Lender the Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations; and (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders Seller shall continue to deal solely and directly with such Lender the Buyer in connection with such Lenderthe Buyer's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(gc) Any Lender The Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05Section 28, disclose to the assignee or participant or proposed assignee oR participant, as the case may be, any information relating to the Borrowers Seller or any of its Affiliates or to any aspect of the Transaction that has been furnished to such Lender the Buyer by or on behalf of the BorrowersSeller or any of its Affiliates; PROVIDED, HOWEVER, that, prior provided that such participant agrees to any hold such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing information subject to preserve the confidentiality provisions of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Sources: Master Repurchase Agreement (American Business Financial Services Inc /De/)
Assignment; Participations. (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDEDprovided, HOWEVERhowever, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations 81 83 hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections Sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section Section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTERRegister"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I Exhibit K hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.the
Appears in 1 contract
Assignment; Participations. (a) Each Lender This Agreement shall be binding upon, and shall inure to the benefit of, the Borrowers, the Agent, the Banks and their respective successors and assigns, except that the Borrowers may not assign to one or more Eligible Assignees all or a portion of transfer its rights or obligations hereunder. Each Bank may, with the prior written consent of the Agent and, except while a Default exists and obligations under this Agreement is continuing, the Borrowers (includingwhich consent of the Borrowers may not be unreasonably be withheld) assign, without limitationor sell participations in, all or an undivided portion any part of all of its Revolving Credit Commitmentany Loan or Commitment to another bank or other entity, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that in which event (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, upon notice thereof by the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant Bank to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if with a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver copy to the Agent, for its acceptance the assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights, benefits and recording obligations as it would have if it were a Bank hereunder; and (ii) in the Registercase of a participation, the participant shall have no rights under the Facility Documents and all amounts payable by the Borrowers under Article 3 shall be determined as if such Bank had not sold such participation. Any assignment pursuant to this Section 11.5 shall be in an Assignment amount not less than $5,000,000 and Acceptanceshall leave any assigning Bank that remains a "Bank" hereunder with a Commitment of at least $2,000,000, together except that (i) no such minimum amount will be required to be transferred or retained if such assignment is necessary or prudent for regulatory purposes, and (ii) no such minimum amount will be required to be transferred if the transferee is already a "Bank" hereunder. The agreement executed by such Bank in favor of the participant shall not give the participant the right to require such Bank to take or omit to take any action hereunder except action directly relating to (i) the extension of a payment date with respect to any portion of the principal of or interest on any amount outstanding hereunder allocated to such participant, (ii) the reduction of the principal amount outstanding hereunder or (iii) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with such Bank. Such Bank may furnish any information concerning the Borrowers in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants); provided that such Bank shall require any such prospective assignee or such participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information. Notwithstanding any provision of this Section 11.5 to the contrary, in no event shall any participant have greater rights with respect to any or all of the Borrowers than those held by the Bank from which it obtained its participating interest. In connection with any Note or Notes subject assignment pursuant to this paragraph (a), the assigning Bank shall pay the Agent an administrative fee for processing such assignment and a processing and recordation fee in the amount of $3,5002,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights assignments and obligations hereunder have been assigned to it pursuant to such Assignment participations permitted under paragraph (a) above, any Bank may assign and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; Bank or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
Appears in 1 contract
Assignment; Participations. (a) Each Lender This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Agent, the Banks and their respective successors and assigns, except that the Borrower may not assign to one or more Eligible Assignees all or a portion of transfer its rights and or obligations under this Agreement (includinghereunder. Each Bank may assign, without limitationor sell participations in, all or an undivided portion of all any part of its Revolving Credit CommitmentCommitment or any Loan to another bank or other entity, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that in which event (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was upon notice thereof by the Bank to the Borrower with a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver copy to the Agent, for its acceptance the assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights, benefits and recording obligations as it would have if it were a Bank hereunder; and (ii) in the Registercase of a participation, an Assignment the participant shall have no rights under the Facility Documents and Acceptanceall amounts payable by the Borrower under ARTICLE 3 shall be determined as if such Bank had not sold such participation. The agreement executed by such Bank in favor of the participant shall not give the participant the right to require such Bank to take or omit to take any action hereunder except action directly relating to (i) the extension of the Termination Date, together (ii) the extension of a payment date with respect to any Note portion of the principal of or Notes subject interest on any amount outstanding hereunder, or with respect to any Commitment fees, allocated to such assignment participant, (iii) the reduction of the principal amount outstanding hereunder or (iv) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with such Bank. Such Bank may furnish any information concerning the Borrower in the possession of such Bank from time to time to assignees and a processing participants (including prospective assignees and recordation fee participants); provided that such Bank shall require any such prospective assignee or such participant (prospective or otherwise) to agree to maintain the confidentiality of $3,500such information.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights assignments and obligations hereunder have been assigned to it pursuant to such Assignment participations permitted under paragraph (a) above, any Bank may assign and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; Bank or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
Appears in 1 contract
Assignment; Participations. (a) Each Lender This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Agent, the Banks and their respective successors and assigns, except that the Borrower may not assign to one or more Eligible Assignees all or a portion of transfer its rights and or obligations under this Agreement hereunder.
(includingb) Each Bank may, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers Borrower (which consent will not to be unreasonably withheldwithheld or delayed) except assign all or any part of its Commitments, its Note or Loans to another bank or other Person provided, however, that (i) no such consent by the Borrower or the Agent shall be required in the case of any assignment to another Bank; and (ii) any such partial assignment shall be made in an amount of at least $5,000,000.00. Upon execution and delivery by the assignee to the Borrower and the Agent of an instrument in writing pursuant to which such assignee agrees to become a "Bank" hereunder (if not already a Default or Event Bank) having the Commitment and Loan specified in such instrument, and upon consent thereto by the Borrower and the Agent, to the extent required above, the assignee shall have, to the extent of Default shall have occurred and be continuing, such assignment (unless otherwise provided in such assignment with the consent of the Borrowers shall not be required; Borrower and (v) the parties to each such assignment shall execute and deliver to the Agent), for its acceptance and recording in the Registerobligations, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations benefits of a Bank hereunder have been holding the Commitment and Loans (or portions thereof) assigned to it pursuant (in addition to the Commitment and Loans, if any, theretofore held by such Assignment Assignee) and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptanceof assignment, relinquish its rights and be released from its obligations under this Agreement the Commitment (and, in or portion thereof) so assigned. Upon each such assignment the case assignee shall pay the Agent an assignment fee of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto)$3,500.00.
(c) By executing A Bank may sell or agree to sell to one or more banks or other Persons a participation in all or any part of any Loans held by it, or in its Commitment, in which event each purchaser of a participation (a "Participant") shall not, except as otherwise provided in Section 10.17 hereof, have any rights or benefits under this Agreement or any Note (the participant's rights against such Bank in respect of such participation to be those set forth in the agreements executed by such Bank in favor of the Participant). All amounts payable by the Borrower to any Bank under Article 2 hereof in respect of Loans held by it and delivering an Assignment its Commitment, shall be determined as if such Bank had not sold or agreed to sell any participations in such Loan and AcceptanceCommitment, and as if such Bank were funding each of such Loan and Commitment in the Lender assignor thereunder same way that it is funding the portion of such Loan and Commitment in which no participations have been sold. The agreement executed by such Bank in favor of the assignee thereunder confirm Participant shall not give the Participant the right to and agree with each other and the other parties hereto as follows: require such Bank to take or omit to take any action hereunder except action directly relating to (i) other than as provided in such Assignment and Acceptancethe extension of the Maturity Date, such assigning Lender makes no representation or warranty and assumes no responsibility (ii) the extension of a payment date with respect to any statements, warranties or representations made in or in connection with this Agreement fees payable hereunder or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition portion of the Borrowers principal of or interest on any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; amount outstanding hereunder allocated to such participant, (iii) such assignee confirms that it has received a copy of this Agreement, together with copies the reduction of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; principal amount outstanding hereunder, or (iv) the reduction of the rate of interest payable on such assignee will, independently and without reliance upon the Agent, such assigning Lender amount or any other Lender and based on such documents and information amount of fees payable hereunder to a rate or amount, as it shall deem appropriate at the timecase may be, continue below that which the Participant is entitled to make receive under its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together agreement with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank.
(d) The Agent shall maintain at its address referred In addition to in section 12.06 a copy of each Assignment the assignments and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time participations permitted under paragraphs (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(eb) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iiic) give prompt notice thereof to the Borrowers. In the case of above, any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute Bank may assign and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights Loan and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (includingBank, without limitation, its Revolving Credit Commitment) shall remain unchanged; or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the Borrower or any of its Subsidiaries in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants), provided that such Bank shall require any assignee or participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information.
Appears in 1 contract
Sources: Credit Agreement (Hardinge Inc)
Assignment; Participations. (a) Each The Lender may assign to one or more Eligible Assignees all or a portion any of its rights and obligations hereunder or under any of the other Loan Documents; provided that unless an Event of Default has occurred and is continuing, any such assignment shall require the Borrower’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned). The Lender may also grant or sell participation interests in this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans the other Loan Documents and all Notes held by it); PROVIDEDsums payable hereunder and thereunder (each, HOWEVER, that a “Participation”) so long as each of the following conditions is satisfied with respect to such Participation: (i) each such assignment shall be in the absence of a uniforman Event of Default, and the proposed participant is not a varying, undivided percentage of all rights and obligations under and in respect Competitor of the Revolving Credit Commitments, Revolving Credit Loans and Term LoansBorrower or any Affiliate thereof; (ii) except no participant shall have direct recourse against the Borrower or any Affiliate of the Borrower but only through the Lender; (iii) the Borrower shall continue to deal solely and exclusively with the Lender in connection with the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's ’s rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment ; and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no any agreement or instrument pursuant to which the Lender sells such assignments a Participation shall provide that any action to be permitted taken to enforce the terms of this Agreement or to amend, modify or waive any provisions thereof shall require the consent of not less than a majority of the parties holding an interest this Agreement and all sums payable thereunder; provided, however, that such agreement or instrument may provide that, without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptanceparticipant, the Lender assignor thereunder and the assignee thereunder confirm to and may not agree with each other and the other parties hereto as followsto: (iA) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to postpone any statements, warranties or representations made in or in connection with date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal of, premium, if any, and/or interest on the Note, or any other amounts due by the Borrower or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created Guarantor under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; Document, (iiB) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to reduce the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries amount of any of their obligations under any Facility Document scheduled principal and/or interest payment due hereunder or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case by the Borrower or the Guarantor to the extent subject to such participation, postpone Lender under any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the CollateralLoan Documents; and (vi) provided, however, that only the identity consent of a majority of the participant participants shall have been approved by be necessary to amend the Agent in writing to such Lender.
definition of “Default Rate”, (gC) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to release the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality Guarantor of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights payment or performance obligations under its Guaranty, (D) release, subordinate or substitute any collateral given to secure the Borrower’s obligations under this Agreement or any other Loan Document, or (includingE) amend, without limitation, waive or modify the Loans owing to it and the Note or Notes held by it) in favor provisions of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Systemthis Section 9.13.
Appears in 1 contract
Sources: Loan and Security Agreement (Overseas Shipholding Group Inc)
Assignment; Participations. (a) Each Lender This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Agent, the Banks and their respective successors and assigns, except that the Borrower may not assign to one or more Eligible Assignees all or a portion of transfer its rights and or obligations under this Agreement hereunder.
(includingb) Each Bank may, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers Borrower (which consent will not to be unreasonably withheldwithheld or delayed) except assign all or any part of its Commitments, its Note or Loans to another bank or other Person provided, however, that (i) no consent of the Borrower shall be required if a Default or an Event of Default under Section 9.01 hereof shall have occurred and is continuing; (ii) no such consent by the Borrower or the Agent shall be continuingrequired in the case of any assignment to a Bank; and (iii) any such partial assignment shall be made in an amount of at least $5,000,000. Upon execution and delivery by the assignee to the Borrower and the Agent of an instrument in writing pursuant to which such assignee agrees to become a "Bank" hereunder (if not already a Bank) having the Commitment and Loan specified in such instrument, and upon consent thereto by the Borrower and the Agent, to the extent required above, the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the Borrowers shall not be required; Borrower and (v) the parties to each such assignment shall execute and deliver to the Agent), for its acceptance and recording in the Registerobligations, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations benefits of a Bank hereunder have been holding the Commitment and Loans (or portions thereof) assigned to it pursuant (in addition to the Commitment and Loans, if any, theretofore held by such Assignment Assignee) and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptanceof assignment, relinquish its rights and be released from its obligations under this Agreement the Commitment (and, in or portion thereof) so assigned. Upon each such assignment the case assignee shall pay the Agent an assignment fee of an Assignment $3,500 and Acceptance covering all or if the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender assignee shall cease to not be a party hereto)Bank, deliver to the Agent an Administrative Questionnaire.
(c) By executing A Bank may sell or agree to sell to one or more banks or other Persons a participation in all or any part of any Loans held by it, or in its Commitment, in which event each purchaser of a participation (a "Participant") shall not, except as otherwise provided in Section 10.17 hereof, have any rights or benefits under this Agreement or any Note (the participant's rights against such Bank in respect of such participation to be those set forth in the agreements executed by such Bank in favor of the Participant). All amounts payable by the Borrower to any Bank under Article 2 hereof in respect of Loans held by it and delivering an Assignment its Commitment, shall be determined as if such Bank had not sold or agreed to sell any participations in such Loan and AcceptanceCommitment, and as if such Bank were funding each of such Loan and Commitment in the Lender assignor thereunder same way that it is funding the portion of such Loan and Commitment in which no participations have been sold. The agreement executed by such Bank in favor of the assignee thereunder confirm Participant shall not give the Participant the right to and agree with each other and the other parties hereto as follows: require such Bank to take or omit to take any action hereunder except action directly relating to (i) other than as provided in such Assignment and Acceptancethe extension of the Maturity Date, such assigning Lender makes no representation or warranty and assumes no responsibility (ii) the extension of a payment date with respect to any statements, warranties or representations made in or in connection with this Agreement fees payable hereunder or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition portion of the Borrowers principal of or interest on any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; amount outstanding hereunder allocated to such participant, (iii) such assignee confirms that it has received a copy of this Agreement, together with copies the reduction of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; principal amount outstanding hereunder, or (iv) the reduction of the rate of interest payable on such assignee will, independently and without reliance upon the Agent, such assigning Lender amount or any other Lender and based on such documents and information amount of fees payable hereunder to a rate or amount, as it shall deem appropriate at the timecase may be, continue below that which the Participant is entitled to make receive under its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together agreement with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank.
(d) The Agent shall maintain at its address referred In addition to in section 12.06 a copy of each Assignment the assignments and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time participations permitted under paragraphs (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(eb) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iiic) give prompt notice thereof to the Borrowers. In the case of above, any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute Bank may assign and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights Loan and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that to (i) any affiliate of such Lender's obligations under this Agreement (includingBank, without limitation, its Revolving Credit Commitment) shall remain unchanged; or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the 42 Board of Governors of the Federal Reserve SystemSystem and any operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the Borrower or any of its Subsidiaries in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants), provided that such Bank shall require any assignee or participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information.
Appears in 1 contract
Assignment; Participations. This Agreement shall be binding upon, and shall inure to the benefit of, the Borrowers, the Bank and their respective successors and assigns, except that no Borrower may assign or transfer its rights or obligations hereunder. The Bank may assign, or sell participations in, all or any part of any Loan to another bank or other entity, in minimum amounts of $1,000,000, in which event (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreementupon notice thereof by the Bank to the Borrowers, the amount assignee shall have, to the extent of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuingunless otherwise provided therein), the consent of same rights, benefits and obligations as it would have if it were the Borrowers shall not be requiredBank hereunder; and (vb) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Registercase of a participation, an Assignment and Acceptance, together with the participant shall have no rights under the Facility Documents. The agreement executed by the Bank in favor of the participant shall not give the participant the right to require the Bank to take or omit to take any Note or Notes subject action hereunder except action directly relating to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be extension of a party hereto and, payment date with respect to any portion of the extent that rights and obligations principal of or interest on any amount outstanding hereunder have been assigned to it pursuant allocated to such Assignment and Acceptanceparticipant, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition reduction of the Borrowers principal amount outstanding hereunder or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies the reduction of the financial statements referred to in sections 5.05 and 6.08(a) and rate of interest payable on such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender amount or any other Lender and based on such documents and amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with the Bank. The Bank may furnish any information as it shall deem appropriate at concerning the time, continue to make its own credit decisions Borrowers in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all possession of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender Bank from time to time to assignees and participants (the "REGISTER"). The entries in the Register shall be conclusive including prospective assignees and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by itparticipants); PROVIDED, HOWEVER, provided that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) the Bank shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of require any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the prospective assignee or such participant (prospective or proposed assignee oR participant, any information relating otherwise) to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve maintain the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may information. The Bank shall have the right at any time create a security interest in to pledge all or any portion of its rights under the Loans or this Agreement or the Notes to any of the twelve (including, without limitation, the Loans owing to it and the Note or Notes held by it12) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors Banks organized under Section 4 of the Federal Reserve System.Act, 12 U. S.
Appears in 1 contract
Sources: Credit Agreement (Tridex Corp)
Assignment; Participations. Each Bank may, with the prior written consent of the Borrower (awhich may be unreasonably withheld) Each Lender may and the Agent, assign to one or more Eligible Assignees eligible assignees all or a portion of its interests, rights and obligations under this Agreement (including, without limitation, all or an undivided a portion of all of its Revolving Credit Commitment, Revolving Credit Loans the Advances at the time owing to it and Term Loans and all the Notes held by it); PROVIDEDprovided, HOWEVERhowever, that (ia) each such assignment shall be of a uniformconstant, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lenderassigning Bank's rights and obligations under this Agreement, (b) the amount of the Revolving Credit Commitment Percentage of the assigning Lender being assigned pursuant Bank subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignmentassignment is delivered to the Agent) shall in no event be less than $5,000,000; (iii) each such assignment shall 5,000,000 and must be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent in multiples of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing$1,000,000, the consent of the Borrowers shall not be required; and (vc) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Registeracceptance, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) assignment. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such each Assignment and Acceptance, which effective date shall be at least five Business Days after the execution thereof, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder Bank hereunder, and (ii) the Lender assignor assigning Bank thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to provided in such Assignment and Acceptanceassignment, relinquish its rights and be released from its obligations under this Agreement. Notwithstanding the foregoing, each Bank may assign its interest under this Agreement without the consent of any other party (andbut in compliance with such reasonable documentation requirements as the Agent may impose), (A) to any institutional Affiliate of such Bank, or (B) to the Federal Reserve Bank or any branch thereof as collateral in the case ordinary course of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or business. Notwithstanding any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy provision of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or Borrower understands that any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender Bank may at any time create a security interest in all enter into participation agreements with one or any portion more participating banks whereby such Bank will allocate certain percentages of its rights under Commitment to such bank or banks. The Borrower acknowledges that, for the convenience of all parties, this Agreement (includingis being entered into with the Banks only and that Borrower's obligations hereunder are undertaken for the benefit of, without limitationand as an inducement to, any such participating bank as well as the Banks, and the Borrower hereby grants to each participating bank, to the extent of its participation in the Commitment, the Loans owing right to it and set off deposit accounts maintained by the Note Borrower with such bank, provided that such participating banks shall not become "Banks" hereunder, or Notes held by it) in favor of be entitled to directly exercise any Federal Reserve Bank in accordance with Regulation A of the Board of Governors rights or remedies of the Federal Reserve SystemBanks hereunder.
Appears in 1 contract
Assignment; Participations. This Agreement shall be -------------------------- binding upon, and shall inure to the benefit of, the Borrower, the Bank and their respective successors and assigns, except that the Borrower may not assign or transfer its rights or obligations hereunder. Subject to the consent of the Insurance Commissioner, if required, the Bank may sell participations in, or upon ten (10) days' notice to the Borrower may assign all or any part of, any Revolving Loan to another lender, in which event (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Credit Commitments, Revolving Credit Loans and Term Loans; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an the assignee shall have, to the extent of such assignment of all (unless otherwise provided therein), the same rights, benefits and obligations as it would have if it were the Bank hereunder; and (b) in the case of a Lender's participation, the participant shall have no rights and obligations under this Agreement, the amount Revolving Note or the Pledge Agreement. The agreement executed by the Bank in favor of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000; (iii) each such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers participant shall not be required; and (v) give the parties participant the right to each such assignment shall execute and deliver require the Bank to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with take or omit to take any Note or Notes subject action hereunder except action directly relating to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be extension of a party hereto and, regularly scheduled payment date with respect to any portion of the extent that rights and obligations principal of or interest on any amount outstanding hereunder have been assigned to it pursuant allocated to such Assignment and Acceptanceparticipant, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to reduction of the extent that rights and obligations hereunder have been assigned by it pursuant principal amount allocated to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all participant or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies the reduction of the financial statements referred to in sections 5.05 and 6.08(a) and rate of interest payable on such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender amount or any other Lender and based on such documents and amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with the Bank. The Bank may furnish any information as it shall deem appropriate at concerning the time, continue to make its own credit decisions Borrower in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all possession of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender Bank from time to time to assignees and participants (the "REGISTER"). The entries in the Register shall be conclusive including prospective assignees and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes held by itparticipants); PROVIDED, HOWEVER, provided that (i) such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) the Bank shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of require any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the prospective assignee or such -------- participant (prospective or proposed assignee oR participant, any information relating otherwise) to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve maintain the confidentiality of any confidential information received by it from such Lenderinformation.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Sources: Credit Agreement (Centris Group Inc)
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Subsidiary Co-Borrowers, the Administrative Agent, the Banks and their respective successors and assigns, except that the Primary Obligors may not assign or transfer their rights or obligations hereunder. Each Lender Bank may assign to one assign, or more Eligible Assignees sell participations in, all or a portion any part of any Senior Obligation to another bank or other entity provided that any assignment or participation by any Bank of its rights and obligations under this Agreement (including, without limitation, all or an undivided portion of all of its Revolving Credit Commitment, Revolving Credit Loans and Term Loans and all Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, undivided percentage of all rights and obligations under and in respect of the Revolving Letters of Credit Commitmentsshall require the prior consent of the Issuing Bank, Revolving Credit Loans and Term Loans; such consent not to be unreasonably withheld, in which event (iii) except in the case of an assignment to a Person that, immediately prior to such assignment, was upon notice thereof by the Bank to the Borrower with a Lender or an assignment of all of a Lender's rights and obligations under this Agreementcopy to the Administrative Agent, the amount assignee shall have, to the extent of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (unless otherwise provided therein), the same rights, benefits and obligations as it would have if it were a Bank hereunder; and (ii) in the case of a participation, the participant shall have no rights under the Facility Documents and all amounts payable by the Borrower and the Subsidiary Co-Borrowers under Article 4 shall be determined as if such Bank had not sold such participation. The agreement executed by such Bank in favor of the participant shall not give the participant the right to require such Bank to take or omit to take any action hereunder except action directly relating to (i) the extension of a payment date of the Assignment and Acceptance with respect to any portion of the principal of or interest on any amount outstanding hereunder allocated to such assignmentparticipant, (ii) shall in no event be less than $5,000,000; the reduction of the principal amount outstanding hereunder or (iii) each the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with such Bank. Such Bank may furnish any information concerning the Consolidated Entities in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants); provided that such Bank shall require any such prospective assignee or such participant (prospective or otherwise) to agree in writing to maintain the confidentiality of such information. In connection with any assignment pursuant to this paragraph (a), the assigning Bank shall pay the Administrative Agent an administrative fee for processing such assignment shall be to an Eligible Assignee; (iv) no such assignments shall be permitted without the consent of the Agent and the Borrowers (not to be unreasonably withheld) except that if a Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers shall not be required; and (v) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee amount of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, In addition to the extent that rights assignments and obligations hereunder have been assigned to it pursuant to such Assignment participations permitted under paragraph (a) above, any Bank may assign and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any of their Subsidiaries or the performance or observance by the Borrowers or their Subsidiaries of any of their obligations under any Facility Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in sections 5.05 and 6.08(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in section 12.06 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and principal amount of the Loans owing to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I hereto, (i) accept such Assignment and Acceptance; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the Borrowers. In the case of any assignment by a Lender, within five Banking Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Agent in exchange for the surrendered Notes, new Notes to the order of such Eligible Assignee in amounts equal to the Revolving Credit Commitment and Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or any Term Loans hereunder, new Notes to the order of the assigning Lender in amounts equal to the Revolving Credit Commitment and Term Loans retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the forms of EXHIBITS A-1 and A-2 hereto, respectively.
(f) Each Lender may sell participations to one or more Persons (other than the Borrowers or any of their Affiliates) in or to pledge all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, Revolving Credit Loans or Term Loans and any Note or Notes the Senior Obligations held by it); PROVIDED, HOWEVER, that it to (i) any affiliate of such Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged; Bank or (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement; (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement; (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Facility Document, or any consent to any departure by the Borrowers or any of their Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral; and (vi) the identity of the participant shall have been approved by the Agent in writing to such Lender.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this ss. 12.05, disclose to the assignee or participant or proposed assignee oR participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve SystemSystem and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
Appears in 1 contract