Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:
Appears in 3 contracts
Sources: Credit Agreement (Baltimore Gas & Electric Co), Credit Agreement (Baltimore Gas & Electric Co), Credit Agreement (Baltimore Gas & Electric Co)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) the Borrower (unless an Event of Default shall have occurred and be continuing), each LC Issuing Bank (if the assignment increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding)) and the Administrative Agent shall have consented to such assignment (in each case, with each such consent not to be unreasonably withheld or delayed) by signing the Assignment and Acceptance referred to in clause (iv) below; (ii) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, ; (iiiii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 and shall be an integral multiple of $1,000,000 (or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, the total amount of the assigning Lender's Commitment); (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any promissory notes held by the assigning Lender and a processing and recordation fee of $3,500 (which shall be payable by one or more plus an amount equal to out-of-pocket legal expenses of the parties to the Assignment and AssumptionAdministrative Agent, and not estimated by the Borrower (except in the case of a demand under Section 8.07(gAdministrative Agent and advised to such parties)), ; and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower assignee thereunder, if it is not a Lender, shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice deliver to the Administrative Agent within five (5) Business Days after having received notice thereofan administrative questionnaire in a form supplied by the Administrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender hereto) but shall continue to be entitled to indemnification pursuant the benefits of Sections 2.12, 2.15 and 8.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section 8.04(c))8.07. Notwithstanding anything to the contrary contained in this Agreement, any Lender at any time may assign all or any portion of its rights and obligations under this Agreement to any Lender, any Affiliate of a Lender or any Approved Fund of any Lender. No assignment shall be made to (i) the Borrower or any of the Borrower's Affiliates or subsidiaries or to (ii) a natural person.
(b) The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at its address referred to in Section 8.07(a) 8.02 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 Commitment of, and principal amount of the Advances 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 Borrower, the Administrative 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, notwithstanding notice to the contrary, (A) the consent of . The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any promissory notes held by the assigning Lender, the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Lender or to another Lender or to an Approved FundAssignment and Acceptance, (ii) record the information contained therein in the Register and (Biii) any give prompt notice thereof to the Borrower.
(d) Each Lender may at any timetime sell participations to one or more banks, financial institutions or other entities (other than a natural person or the Borrower or any of the Borrower's Affiliates or subsidiaries) (each, a "Participant") in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it); provided, however, that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) 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 maker of any such Advance for all purposes of this Agreement and (iv) the Borrower, the Administrative Agent, the LC Issuing Banks 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. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver with respect to the provision in Section 8.01 relating to amendments, waivers or consents requiring unanimous consent of the Lenders that affects such Participant. Subject to the following paragraph, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.12 and 2.15 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.05 as though it were a Lender, provided such Participant agrees to be subject to Section 2.16 as though it were a Lender. A Participant shall not be entitled to receive any greater payment under Sections 2.12 and 2.15 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.15 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.15(d) as though it were a Lender.
(e) If any Lender shall make any demand for payment under Section 2.12 or 2.15, or if any Lender shall be the subject of any notification or assertion of illegality under Section 2.13, then within 30 days after any such demand (if, but only if, such demanded payment has been made by the Borrower) or notification or assertion, the Borrower may, with the approval of the Administrative Agent and the LC Issuer Issuing Banks (which approval shall not be unreasonably withheld) and provided that no Event of Default or event that, with the giving of notice or lapse of time or both, would constitute an Event of Default, shall then have occurred and be continuing, demand that such Lender assign in accordance with this Section 8.07 to one or more assignees designated by the Borrower and acceptable to the Administrative Agent all (but not less than all) of such Lender's Commitment and the Advances owing to it within the period ending on the later to occur of such 30th day and the last day of the longest of the then current Interest Periods for such Advances; provided, however, that the Borrower shall pay to the Administrative Agent the $3,500 administrative fee payable pursuant to clause (iv) of subsection (a) above if such assignee is not a Lender immediately prior to such assignment. If any such assignee designated by the Borrower and approved by the Administrative Agent shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such assignees acceptable to the Administrative Agent for all or part of such Lender's Commitment or Advances, then such demand by the Borrower shall become ineffective; it being understood for purposes of this subsection (e) that such assignment shall be conclusively deemed to be on terms acceptable to such Lender, and such Lender shall be compelled to consummate such assignment to a financial institution designated by the Borrower and reasonably acceptable to the Administrative Agent and each LC Issuing Bank, if such financial institution (A) shall agree to such assignment by entering into an Assignment and Acceptance with such Lender and (B) shall offer compensation to such Lender in an amount equal to all amounts then owing by the Borrower to such Lender hereunder, whether for principal, interest, fees, costs or expenses (other than the demanded payment referred to above and payable by the Borrower as a condition to the Borrower's right to demand such assignment), or otherwise. In addition, in the event that the Borrower shall be entitled to demand the replacement of any Lender pursuant to this subsection (e), the Borrower may, in the case of any such Lender, with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and provided that no Event of Default or event that, with the giving of notice or lapse of time or both, would constitute an Event of Default, shall then have occurred and be continuing, terminate all (but not less than all) such Lender's Commitment and prepay all (but not less than all) such Lender's Advances not so assigned, together with all interest accrued thereon to the date of such prepayment and all fees, costs and expenses and other amounts then owing by the Borrower to such Lender hereunder, at any time from and after such later occurring day in accordance with Sections 2.05 and 2.11 hereof (but without the requirement stated therein for ratable treatment of the other Lenders), if and only if, after giving effect to such termination and prepayment, the sum of the aggregate principal amount of the Advances of all Lenders then outstanding does not exceed the then remaining Commitments of the Lenders. Notwithstanding anything set forth above in this subsection (e) to the contrary, the Borrower shall not be entitled to compel the assignment by any Lender demanding payment under Section 2.12(a) of its Commitment and Advances or terminate and prepay the Commitment and Advances of such Lender if, prior to or promptly following any such demand by the Borrower, such Lender shall have changed or shall change, as the case may be, its Applicable Lending Office for its Eurodollar Rate Advances so as to eliminate the further incurrence of such increased cost. In furtherance of the foregoing, any such Lender demanding payment or giving notice as provided above agrees to use reasonable efforts to so change its Applicable Lending Office if, to do so, would not result in the incurrence by such Lender of additional costs or expenses which it deems material or, in the sole judgment of such Lender, be inadvisable for regulatory, competitive or internal management reasons.
(f) Anything in this Section 8.07 to the contrary notwithstanding, any Lender may assign and pledge all or any portion of its Commitment and the Advances owing to it to any Federal Reserve Bank (and its transferees) as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC") of such Granting Lender identified as such in writing from time to time by the Granting Lender to the Administrative Agent, the LC Issuing Banks and without any requirement the Borrower, the option to have an Assignment and Assumption executed, assign provide to the Borrower all or any part of its rights any Advance that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any such SPC to make any Advance, (ii) if such SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof and (iii) no SPC or Granting Lender shall be entitled to receive any greater amount pursuant to Section 2.12 or 8.04(b) than the Granting Lender would have been entitled to receive had the Granting Lender not otherwise granted such SPC the option to provide any Advance to the Borrower. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would otherwise be liable so long as, and to the extent that, the related Granting Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against or join any other person in instituting against such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. Notwithstanding the foregoing, the Granting Lender unconditionally agrees to indemnify the Borrower, the LC Issuing Banks, the Administrative Agent and each Lender against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be incurred by or asserted against the Borrower, the LC Issuing Banks, the Administrative Agent or such Lender, as the case may be, in any way relating to or arising as a Federal Reserve Bank, provided consequence of any such forbearance or delay in the initiation of any such proceeding against its SPC. Each party hereto hereby acknowledges and agrees that no SPC shall have the rights of a Lender hereunder, such assignment rights being retained by the applicable Granting Lender. Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPC shall release have any voting rights hereunder and that the transferor voting rights attributable to any Advance made by an SPC shall be exercised only by the relevant Granting Lender from any and that each Granting Lender shall serve as the administrative agent and attorney-in-fact for its SPC and shall on behalf of its obligations SPC receive any and all payments made for the benefit of such SPC and take all actions hereunder to the extent, if any, such SPC shall have any rights hereunder. For In addition, notwithstanding anything to the purposes contrary contained in this Agreement any SPC may (i) with notice to, but without the prior written consent of this Section 8.07(a)any other party hereto, the terms “Approved Fund” and “Ineligible Institution” have the following meanings:assign all or
Appears in 3 contracts
Sources: Credit Agreement (Entergy Gulf States Inc), Credit Agreement (Entergy Gulf States Inc), Credit Agreement (Entergy Gulf States Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded following a demand by the Borrower such Lender pursuant to Section 8.07(g2.10 or 2.12) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionPaying Agent, will assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more Facilities, (ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or1,000,000 (or such lesser amount as shall be approved by the Paying Agent and, if lessso long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentBorrower), (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Paying Agent, for its acceptance (other than as to assignments to then existing Lenders and/or their Affiliates) and recording in the Register, an Assignment and Assumption, together with any Note or Notes subject to such assignment and together with a processing and recordation fee in the amount of $3,500 3,500; provided, however, that the processing and recordation fee set forth in sub-clause (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and iv) above shall not be payable if (A) with respect to an assignment by any Lender Party to an Affiliate or an Approved Fund of such Lender Party, or (B) with respect to an assignment (x) which is both by and to an existing Lender Party or (y) with a stated effective date occurring prior to the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required 90th day after the occurrence and during the continuance of any Event of Default, and Effective Date hereof.
(vib) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Assumption, (xi) 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 Assumption, have the rights and obligations of a Lender or an Issuing Bank, as the case may be, hereunder and (yii) the Lender or an Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all or of the remaining portion of an assigning Lender’s or an Issuing Bank’s rights and obligations under this Agreement, such Lender or such Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Assumption, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (although an i) other than as provided in such Assignment and Assumption, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower Party makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with any 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, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan 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 Section 4.01 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 Assumption; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party 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 Affiliate Eligible Assignee; (vi) such assignee appoints and authorizes each 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 such Agent by the terms hereof and thereof, 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 such the obligations that by the terms of this Agreement are required to be performed by it as a Lender or an Issuing Bank, as the case may be.
(d) The Paying Agent shall maintain at its address referred to another in Section 8.02 a copy of each Assignment and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lender or to an Approved FundParties and the Commitment under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (B) any Lender may at any timethe “Register”). The entries in the Register shall be conclusive and binding for all purposes, without the consent of absent manifest error, and the Borrower, the Agents and the Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any LC Issuer Agent or the Administrative Agent, any Lender Party at any reasonable time and without any requirement from time to have time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Assumption executedexecuted by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Paying Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Paying Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Assumption and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment 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 Assumption and shall otherwise be in substantially the form of Exhibit A hereto.
(f) Each Issuing Bank may assign to an Eligible Assignee all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that each such assignment shall be to an Eligible Assignee and the parties to each such assignment shall execute and deliver to the Paying Agent, for its acceptance and recording in the Register, an Assignment and Assumption.
(g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such Lender Party’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party 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.
(h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Advances owing to a it and the Note or Notes held by it) in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Lender from any Board of its obligations hereunder. For Governors of the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Federal Reserve System.
Appears in 2 contracts
Sources: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and (following a demand by such Lender pursuant to Section 2.10 or 2.12) upon at least five Business Days' notice to such Lender and the Administrative Agent (which consents shall not be unreasonably withheld or delayed)Agent, and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, will assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more Facilities, (ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender’s , an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender's rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or1,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, if lessso long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentBorrower), (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance (other than as to assignments to then existing Lenders and/or their Affiliates) and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and together with a processing and recordation fee in the amount of $3,500 3,500; provided, however, that the processing and recordation fee set forth in sub-clause (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and iv) above shall not be payable if (A) with respect to an assignment by any Lender Party to an Affiliate or an Approved Fund of such Lender Party, or (B) with respect to an assignment (x) which is both by and to an existing Lender Party or (y) with a stated effective date occurring prior to the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required 90th day after the occurrence and during the continuance of any Event of Default, and Effective Date hereof.
(vib) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AssumptionAcceptance, (xi) 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 AssumptionAcceptance, have the rights and obligations of a Lender or an Issuing Bank, as the case may be, hereunder and (yii) the Lender or an Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or of the remaining portion of an assigning Lender’s 's or an Issuing Bank's rights and obligations under this Agreement, such Lender or such Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower Party makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any 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, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan 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 Section 4.01 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 any Agent, such assigning Lender Party or any other Lender Party 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 each 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 such Agent by the terms hereof and thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender or an Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Lender Parties and the Commitment under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party 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 Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment 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 form of Exhibit A hereto.
(f) Each Issuing Bank may assign to an Affiliate Eligible Assignee all or a portion of such Lender or to another Lender or to an Approved Fund, its rights and (B) any Lender may obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, without however, that each such assignment shall be to an Eligible Assignee and the consent of the Borrower, any LC Issuer or parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and without any requirement to have recording in the Register, an Assignment and Assumption executedAcceptance.
(g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, assign without limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender Party's obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party 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.
(h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Advances owing to a it and the Note or Notes held by it) in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Lender from any Board of its obligations hereunder. For Governors of the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Federal Reserve System.
Appears in 2 contracts
Sources: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Assignments and Participations. (a) Each Lender may, may with the prior written consent of the BorrowerAgent, each LC Issuer Issuing Bank and, so long as no Event of Default has occurred and is continuing, the Administrative Agent Borrower (which consents shall not be unreasonably withheld or delayed), and and, if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.11, 2.14 or 2.20) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAgent, will assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Revolving Credit Commitment, its Unissued Letter of Credit Commitment, the Advances owing to it it, its participations in Letters of Credit and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s its rights and obligations under this Agreement, (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 Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than (x) in the case of an assignment of Revolving Credit Commitment, $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 in excess thereof and (y) in the case of an assignment of Unissued Letter of Credit Commitment, $5,000,000 or such Lender’s entire Commitmentan integral multiple of $1,000,000 in excess thereof, in each case unless the Agent and, if no Default has occurred and is continuing, the Borrower otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 (which payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), an assignment made at the request of the Borrower to an Eligible Assignee that is an existing Lender and shall not be payable if the assignee is a Federal Reserve Bank), (vvii) the no consent of the Borrower Borrower, the Agent or any Issuing Bank shall not be required after in the occurrence and during the continuance case of any Event of Default, and (vi) the Borrower shall be deemed to have consented an assignment to any Affiliate of the assigning Lender or in the case of an assignment to a Person that, immediately prior to such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofassignment, was a Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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).
(b) 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: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with any 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, any Loan Document or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 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 the Loan Documents; (v) such assignee confirms that it is an Affiliate 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 any Loan Document as are delegated to the Agent by the terms hereof or thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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 C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in Section 8.02 a copy of each Assumption Agreement and 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 Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be prima facie evidence of the correctness thereof and binding for all purposes, absent manifest error, and the Borrower, 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other entities (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, its participation in Letters of Credit, the Advances owing to it and any Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender or shall remain the holder of any such Note for all purposes of this Agreement, (iv) each Loan Party, the Agent and the other Lenders shall continue to another deal solely and directly with such Lender or to an Approved Fund, in connection with such Lender’s rights and obligations under this Agreement and (Bv) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any other Loan Document, or any consent to any departure by any Loan Party 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, or 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.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Loan Parties furnished to such Lender by or on behalf of the Loan Parties; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Borrower Information relating to the Loan Parties received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Advances owing to a it and any Note or Notes held by it) in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Lender from any Board of its obligations hereunder. For Governors of the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Federal Reserve System.
Appears in 2 contracts
Sources: Credit Agreement (Packaging Corp of America), Credit Agreement (Packaging Corp of America)
Assignments and Participations. (a) Each Lender may, with the prior written consent (unless such assignment is to a Lender or a wholly-owned Affiliate of such Lender, in which case only the consent, not to be unreasonably delayed, of the Borrower, Swingline Bank and each LC Issuer Issuing Bank and notice to the Borrower and the Administrative Agent Agent, shall be required) of the Administrative Agent, the Swingline Bank, the Borrower (unless a Default shall have occurred and be continuing) and each LC Issuing Bank (which consents shall not be unreasonably withheld or delayed)delayed and, and if demanded by in the case of the Borrower, the Borrower pursuant shall be deemed to Section 8.07(g) have consented to any such assignment unless it shall object thereto by written notice to the extent required by Administrative Agent within ten Business Days after having received notice of such Sectionproposed assignment), assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (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 Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 10,000,000 or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall to be payable by one or more of the parties to the Assignment and Assumption, and not paid by the Borrower (except assigning Lender or, in the case of a demand under an assignment pursuant to Section 8.07(g)8.07(i), and shall not be payable if the assignee is a Federal Reserve BankBorrower), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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).
(b) By executing and delivering an Assignment and Assumption, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (although i) other than as provided in such Assignment and Assumption, 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms it has full power and authority, and has taken all action necessary, to execute and deliver such Assignment and Assumption and to consummate the transactions contemplated thereby and to become a Lender under this Agreement, (ii) such assignee confirms that it is an “Eligible Assignee”, (iii) such assignee confirms that it is sophisticated with respect to decisions to acquire assets of the type represented by the rights and obligations assigned to it under such Assignment and Assumption and either it, or the person exercising discretion in making its decision to acquire such rights and obligations, is experienced in acquiring assets of such type, (iv) it has received a copy of this Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01(i)(i) and (ii), as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption and to purchase the rights and obligations assigned thereunder, and (v) it has, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into the Assignment and Assumption and to purchase the rights and obligations assigned thereunder; (vi) such assignee agrees that it will, independently and without reliance on the Administrative 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, (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 and (viii) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto.
(c) Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, accept such Assignment and Assumption, record the information contained therein in the Register and forward a copy thereof to the Borrower.
(d) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and, the Commitment of, and principal amount of the Advances 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 Borrower, the Administrative 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 Borrower, the Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon written notice to the Borrower and the Administrative Agent, each Lender may sell participations to one or more banks or other entities (other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and/or obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances) without the consent of the Borrower, the Administrative Agent, the Swingline Bank, any LC Issuing Bank or any Lender; provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative Agent, the Swingline Bank, the LC Issuing Banks 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 and (iv) no Lender shall be entitled to indemnification receive any greater amount pursuant to Section 2.15 or 2.18 than such Lender would have been entitled to receive had such Lender not sold such participation. No Lender may grant to any holder of a participation in the rights and obligations of such Lender hereunder the right to require such Lender to take or omit to take any action under this Agreement, except that such Lender may grant to any such holder the right to require such holder’s consent to (i) reduce the principal of or interest on the outstanding Borrowings or the fees or other amounts payable to such Lender hereunder, (ii) postpone any date fixed for any payment of principal of or interest on the outstanding Borrowings or the fees payable to such Lender hereunder or (iii) permit the Borrower to assign any of its obligations under this Agreement to any other Person. Each holder of a participation in any rights and obligations under this Agreement, if and to the extent the applicable participation agreement so provides, shall, with respect to such participation, be entitled to all of the rights of a Lender as fully as though it were a Lender under Sections 2.11(c), 2.15, 2.18 8.01, 8.04(b) and 8.04(c) (subject to any conditions imposed on each Lender hereunder with respect thereto, including delivery of the forms and certificates required under Section 2.18(e)). Notwithstanding anything contained ; provided, however, that no holder of a participation shall be entitled to any amounts that would otherwise be payable to it with respect to its participation under Section 2.15(a) or 2.18 unless (x) such amounts are payable in this Section 8.07(arespect of a Regulatory Change enacted after the date the applicable participation agreement was executed or (y) such amounts would have been payable to the contrary, (A) the consent of Lender that granted such participation if such participation had not been granted. Each Lender selling or granting a participation shall indemnify the Borrower and the Administrative Agent for any liabilities for Taxes that the Borrower or the Administrative Agent, as the case may be, might incur as a result of such Lender’s failure to withhold and pay any Taxes applicable to payments by such Lender to its participant in respect of such participation.
(f) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”) of such Granting Lender identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any such SPV to make any Advance, (ii) if such SPV elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof and (iii) no SPV or Granting Lender shall be entitled to receive any greater amount pursuant to Section 2.11(c), 2.15 or 2.18 than the Granting Lender would have been entitled to receive had the Granting Lender not otherwise granted such SPV the option to provide any Advance to the Borrower. The making of an Advance by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by such Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would otherwise be liable so long as, and to the extent that, the related Granting Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against or join any other Person in instituting against such SPV any bankruptcy, reorganization, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. Notwithstanding the foregoing, the Granting Lender unconditionally agrees to indemnify the Borrower, the Administrative Agent and each Lender against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be incurred by or asserted against the Borrower, the Administrative Agent or such Lender, as the case may be, in any way relating to or arising as a consequence of any such forbearance or delay in the initiation of any such proceeding against its SPV. Each party hereto hereby acknowledges and agrees that no SPV shall have the rights of a Lender hereunder, such rights being retained by the applicable Granting Lender. Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPV shall have any voting rights hereunder and that the voting rights attributable to any Advance made by an SPV shall be exercised only by the relevant Granting Lender and that each Granting Lender shall serve as the administrative agent and attorney-in-fact for its SPV and shall on behalf of its SPV receive any and all payments made for the benefit of such SPV and take all actions hereunder to the extent, if any, such SPV shall have any rights hereunder. In addition, notwithstanding anything to the contrary contained in this Agreement any SPV may (i) with notice to, but without the prior written consent of any other party hereto, assign all or a portion of its interest in any Advances to the Granting Lender and (ii) in accordance with Section 8.08, disclose on a confidential basis any Confidential Information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPV. This Section may not be required amended without the prior written consent of each Granting Lender, all or any part of whose Advance is being funded by an SPV at the time of such amendment.
(g) Any Lender may, in connection with respect any assignment, designation, participation or grant to an SPV or proposed assignment, designation, participation or grant to an SPV pursuant to this Section 8.07, disclose to the assignee, designee or participant or proposed assignee, designee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any assignment such disclosure, the assignee, designee or participant or proposed assignee, designee or participant shall agree to preserve the confidentiality of any Confidential Information relating to the Borrower received by it from such Lender.
(h) Notwithstanding any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fundother provision set forth in this Agreement, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer Issuing Bank, the Swingline Bank or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign create a security interest in all or any part portion of its rights under this Agreement to a in favor of any Federal Reserve BankBank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(i) In the event that any Lender, provided that no or any participant of such assignment Lender pursuant to Section 8.07(e), shall release have delivered a notice or certificate pursuant to Section 2.16, or the transferor Borrower shall be required to make additional payments to any Lender from under Section 2.11(c), 2.15 or 2.18, or any of Lender shall be a Declining Lender or a Defaulting Lender, the Borrower shall have the right, at its obligations hereunder. For own expense, upon notice to such Lender, to require such Lender to transfer and assign without recourse (in accordance with and subject to the purposes of restrictions contained in this Section 8.07(a)8.07) all such Lender’s interests, the terms “Approved Fund” rights and “Ineligible Institution” have the following meanings:obligations under this Agreement to another Eligible Assignee identified by the
Appears in 2 contracts
Sources: Credit Agreement (American Electric Power Co Inc), Credit Agreement (American Electric Power Co Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (neither of which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gsubsection (g) hereof shall to the extent required by such Sectionsubsection (g), assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s 's rights and obligations under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 10,000,000 or, if less, the entire amount of such Lender’s 's Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s 's entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and AssumptionAcceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))Borrower, and shall not be payable if the assignee is a Bank, any Affiliate of any Bank or the Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer Borrower or the Administrative Agent, and without any requirement to have an Assignment and Assumption Acceptance executed, assign all or any part of its rights under this Agreement and its Notes to a Federal Reserve Bank, provided that no such assignment shall does not release the transferor Lender from any of its obligations hereunder.
(b) 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers 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.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance and each Additional Lender Supplement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the "Register"). For The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder, a new Note to the order of the assigning Lender in an amount equal to the Commitment 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 form of Exhibit A hereto.
(e) Each Lender may sell participations to one or more banks or other entities (each, a "Participant") in or to all or a portion of its rights and/or obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided, however, that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) 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 Borrower, the Administrative 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 and (v) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement or the Note or Notes held by such Lender, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07(a8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If (i) any Lender shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, or (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Rate Advances or (iii) shall fail to consent to, or shall revoke its consent to, the extension of any Termination Date pursuant to Section 2.16 or (iv) shall fail to consent to, or shall revoke its consent to, any extension of the "Termination Date" (as defined in the 364-Day Credit Agreement) requested by the Borrower pursuant to Section 2.16 of the 364-Day Credit Agreement as originally constituted (or any successor provision of similar import), then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower), or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect), or (in the case of clauses (iii) and (iv)) no later than 10 days prior to the then effective Termination Date, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent all (but not less than all) of such Lender's Commitment and the Advances owing to it within the next succeeding 30 days (in the case of clause (i) or clause (ii)), or within the next succeeding 5 days (in the case of clauses (iii) and (iv)) . If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender's Commitment or Advances, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Bank") may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Advance, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms “Approved Fund” hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and “Ineligible Institution” have as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the following meanings:Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07(h), any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to the Granting Bank or to any financial institutions (consented to by the Borrower and Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section may not be amended without the written consent of the Granting Bank.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Peco Energy Co), Revolving Credit Agreement (Peco Energy Co)
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender maymay assign and delegate all or any portion of its rights and duties under the Loan Documents (including its Commitments and the Obligations owed to it) to one or more assignees who are permitted to be lenders hereunder pursuant to applicable law, rule, or regulation (including any rules or regulations promulgated by any Gaming Authority or any Liquor Authority (as the case may be)) (each, an “Assignee”), with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) of Agent.
(ii) Assignments shall be subject to the extent required by such Section, assign following additional conditions:
(A) no assignment may be made to one a Loan Party or more banks or other entities (other than an Ineligible Institution) all Affiliate of a Loan Party or a portion natural person,
(B) the amount of its the Commitments and the other rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignmentassignment is delivered to Agent) shall be in no event be less than a minimum amount (unless waived by Agent) of $5,000,000 or500,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, if lessan Affiliate of any Lender, the entire amount or a Related Fund of such Lender’s CommitmentLender or (II) a group of new Lenders, and shall be each of which is an integral multiple Affiliate of $1,000,000 each other or a Related Fund of such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) the assignee thereunder shall be a party hereto and, new Lender to the extent that rights and obligations hereunder have been the aggregate amount to be assigned to it pursuant to all such Assignment and Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(cnew Lenders is at least $500,000)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:;
Appears in 2 contracts
Sources: Credit Agreement (Nevada Gold & Casinos Inc), Credit Agreement (Nevada Gold & Casinos Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of Exelon, the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the a Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and it, its participation in Facility LCsLCs and any Note or Notes held by it); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 4,000 (which shall be payable by one or more of the parties to the Assignment and AssumptionAcceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))any Borrower, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower Exelon shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of Exelon, the Borrower LC Issuer and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of Exelon, the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption Acceptance executed, assign all or any part of its rights under this Agreement and any Note to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers 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.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Commitment Amount of, and principal amount of the Advances owing by each Borrower to, each Lender from time to time (the “Register”). For The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Administrative 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 any Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with all Notes, if any, subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it, its participation in Facility LCs and any Note or Notes held by it); provided that (i) such Lender’s obligations under this Agreement 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 Administrative 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 and (v) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement or any Note held by such Lender, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07(a8.07, 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 that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrowers received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If (i) any Lender shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, or (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Rate Advances, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the applicable Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect), as the case may be, the Borrowers may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrowers and reasonably acceptable to the Administrative Agent all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrowers shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrowers shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrowers, the option to provide to any Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Advance, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms “Approved Fund” hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and “Ineligible Institution” have as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the following meanings:Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to the Granting Bank or to any financial institutions (consented to by such Borrower and Administrative Agent, neither of which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 2 contracts
Sources: Credit Agreement (Exelon Corp), Credit Agreement (Commonwealth Edison Co)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such SectionAgent, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including without limitation all or a portion of its Commitment, the Advances Term Loan owing to it and its participation in Facility LCsit); provided that that:
(i) no such assignment or transfer results in more than 5 (five) Non-Qualifying Banks being Lenders under this Agreement;
(ii) in the case of each such assignment shall be (except in the case of an assignment to a constantPerson that, and not immediately prior to such assignment, was a varying, percentage Lender or an assignment of all of the assigning a Lender’s rights and obligations under this Agreement), (ii) the Commitment Amount amount of the Term Loan of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $€5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, €500,000 in excess thereof;
(iii) each such assignment shall be to an Eligible Assignee, ;
(iv) the proposed assignment (if other than an assignment by a Lender to an Affiliate of such Lender that is a Qualifying Bank) shall be approved by (x) the Administrative Agent, such approval by the Administrative Agent not to be unreasonably withheld or delayed, and (y) if no Default then exists, the Borrower, such approval by the Borrower not to be unreasonably withheld or delayed; provided, however, consent by the Borrower shall not be deemed to be unreasonably withheld if such assignment would result in Rabobank’s Pro Rata Share of the Term Loan being less than fifty percent (50%) of the total of the aggregate outstanding principal amount of the Term Loan; and
(v) the parties to each such assignment shall execute and deliver to the Administrative AgentAgent for its own account, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with a processing and recordation fee of U.S. $3,500 (which shall be 3,500, payable by the assignee to the Administrative Agent (with only one such fee payable in connection with contemporaneous assignments pursuant to the same Assignment and Acceptance to or by two or more Approved Funds of the parties to the a single Lender). Such Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and Acceptance shall not be payable if indicate whether the assignee is a Qualifying Bank or Non-Qualifying Bank as of such date.
(b) An assignment, or transfer in relation to a Term Loan will only be effective if made in accordance with this Section 10.7 and the new Lender has given the confirmation required pursuant to Section 3.3. If the new Lender is not a Qualifying Bank, and there are reasonable concerns that the Swiss Federal Reserve Bank)Tax Administration could look through such Lender and as a result not accept such Lender as one Non-Qualifying Bank Lender only, (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Defaultmay, and (vi) the Borrower shall be deemed prior to have consented to any such assignment unless it shall object thereto by written notice consenting to the Administrative Agent within five assignment or transfer, require that such new Lender provide to it a written confirmation signed by the Swiss Federal Tax Administration confirming that such new Lender is considered by the Swiss Federal Tax Administration to be one Non-Qualifying Bank.
(5c) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Assumption, Acceptance:
(xi) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder or under any other Loan Document have been assigned to it pursuant to such Assignment and AssumptionAcceptance, shall have the rights and obligations of a Lender hereunder and hereunder; and
(yii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement and under each other Loan Document (and, in the case of an Assignment and Assumption 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).
(d) 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:
(although 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 3.1 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 Administrative 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 or an Affiliate of the assignor;
(vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto;
(vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender;
(viii) that the benefit of the security interests and guarantees attached to the rights being assigned shall be transferred to the benefit of the assignee upon the completion of such assignment;
(ix) such assignee confirms, represents and warrants that its designation as either a Qualifying Bank or a Non-Qualifying Bank provided in the Assignment and Acceptance is true and correct; and
(x) such assignee agrees to permit the Borrower to disclose its identity to the Swiss Federal Tax Administration.
(e) The Administrative Agent shall maintain at its address referred to in Section 10.2 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, their respective Commitments, and the principal amount of the Term Loan 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 Borrower, the Administrative 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A hereto:
(i) record the information contained therein in the Register; and
(ii) give prompt notice thereof to the Borrower.
(g) Each Lender may sell participations in or to all or a portion of its rights and obligations under this Agreement (including without limitation all or a portion of its rights in the Term Loan) to a financial institution (a “Participant”); provided that:
(i) such Lender’s obligations under this Agreement shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations;
(iii) the Borrower, the Administrative Agent and the other Lenders shall continue to be entitled deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement;
(iv) the relationship between the Lender and the Participant is that of a debtor and creditor (including in the event of the bankruptcy or similar event of the Lender or a Borrower);
(v) the Participant will have no proprietary interest in the benefit of this Agreement or in any monies received by the Lender under or in relation to indemnification this Agreement;
(vi) the Participant will under no circumstances (other than pursuant to an assignment permitted under Section 8.04(c10.7) be subrogated to, or substituted in respect of, the Lender’s claims under this Agreement;
(vii) the Participant will under no circumstances (other than pursuant to an assignment permitted under Section 10.7) otherwise have any contractual relationship with, or rights against, the Borrower under or in relation to this Agreement; and
(viii) the terms of such participation agreement with a Participant (including any sub-participant)). Notwithstanding anything contained , shall include provisions, in respect of any sub-participations, identical to the provisions of this Section 8.07(a10.7(g) mutatis mutandis.
(h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.7, disclose to the contraryassignee or Participant or proposed assignee or Participant, (A) any public information relating to the consent Borrower furnished to such Lender by or on behalf of the Borrower and any information conspicuously labeled by the Administrative Agent shall not be required with respect Borrower as being confidential at the time such information is furnished to any assignment by any Lender to an Affiliate of such Lender if such assignee or Participant or proposed assignee or Participant has agreed to another Lender or use reasonable efforts to an Approved Fundkeep such information confidential.
(i) Notwithstanding any other provision set forth in this Agreement, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including without limitation the portion of the Term Loan owing to a it) in favor of any Federal Reserve Bank, provided Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System and any Lender that no such assignment shall release is a fund may pledge all or any portion of its rights under this Agreement (including without limitation the transferor Lender from any portion of the Term Loan owing to it) to its trustee in support of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:to its trustee.
Appears in 2 contracts
Sources: Credit Agreement (Agco Corp /De), Credit Agreement (Agco Corp /De)
Assignments and Participations. (a) Each Lender mayThe Loan Documents shall be binding upon and inure to the benefit of the Parent Borrower, the Lenders, the Agents, all future holders of the Loans, and their respective successors and assigns, except that neither the Parent Borrower nor any other Credit Party may assign, delegate or transfer any of its rights or obligations under the Loan Documents (other than in connection with a dissolution or a transaction involving a merger, consolidation or Disposition, in each case otherwise permitted by this Agreement) without the prior written consent of the BorrowerAdministrative Agent and each Lender.
(b) In addition to its rights under Section 12.6(f), each LC Issuer and Lender shall have the Administrative Agent right to sell, assign, transfer or negotiate (which consents shall not be unreasonably withheld each an "Assignment") one hundred percent, or delayed)any lesser percentage, and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement the Loan Documents to any subsidiary or affiliate of such Lender, to any other Lender, or to any other bank, insurance company, financial institution, pension fund, mutual fund or other similar fund (including all or a portion of its Commitmenteach an "Eligible Assignee"), the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment Assignment shall be of a constant, and not a varying, percentage of all of the assigning assignor Lender’s 's rights and obligations under this Agreementthe Loan Documents, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be not less than $5,000,000 or10,000,000, if less, or the entire amount full Commitment Amount of such assignor Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire 's Commitment, (iii) unless the assignee is another Lender or a Subsidiary or affiliate of any Lender (in which case no claims may be made by such assignee pursuant to Section 3.5, 3.6, 3.7, 3.8 or 3.9, in each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver case except to the extent that the assignor Lender would otherwise have the right to do so), the Parent Borrower and the Administrative Agent, for its acceptance and recording Agent shall have consented thereto in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 writing (which consents shall not be payable by one unreasonably withheld or more of the parties to the Assignment and Assumptiondelayed and, and not by the Borrower (except in the case of a demand under Section 8.07(g))the Parent Borrower, and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after upon the occurrence and during the continuance of any an Event of Default), and (viiv) the Borrower assignor Lender and such assignee shall be deemed to have consented to any such assignment unless it shall object thereto by written notice deliver to the Administrative Agent within five (5) Business Days after having received notice thereofthree copies of an Assignment and Acceptance Agreement executed by each of them, along with an assignment fee in the sum of $5,000 for the account of the Administrative Agent. Upon receipt of such executionnumber of executed copies of each such Assignment and Acceptance Agreement, deliverytogether with the assignment fee therefor and the Parent Borrower's and the Administrative Agent's consents to such Assignment, acceptance if required, the Administrative Agent shall record the same and recordingexecute not less than two copies of such Assignment and Acceptance Agreement in the appropriate place, from deliver one such copy to the assignor and one such copy to the assignee, and deliver one photocopy thereof, as executed, to the Parent Borrower. From and after the effective date specified in each such Assignment and AssumptionAcceptance Agreement, (x) the assignee thereunder shall be a party hereto and shall for all purposes of this Agreement and the other Loan Documents be deemed a "Lender" and, to the extent that rights and obligations hereunder have been assigned to it pursuant to provided in such Assignment and AssumptionAcceptance Agreement, have the rights and obligations of a assignor Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and shall be released from its obligations under this Agreement and, in and the case of an Assignment and Assumption covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender other Loan Documents. The Administrative Agent shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(arely upon the representations and warranties made by the assignee under each Assignment and Acceptance Agreement.
(c) In addition to the contraryparticipations provided for in Section 12.10(a), (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any each Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign grant participations in all or any part of its rights under the Loan Documents to one or more Persons, provided that (i) such Lender's obligations under this Agreement and the other Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties to this Agreement and the other Loan Documents for the performance of such obligations, (iii) the Borrowers, the Agents 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 and the other Loan Documents, (iv) the granting of such participation does not require that any additional loss, cost or expense be borne by any Borrower at any time, and (v) the voting rights of any holder of any participation shall be limited to the voting rights of such Lender under Section 12.1(i). -84- 91
(d) No Lender shall, as between and among the Credit Parties, the Agents and such Lender, as the case may be, be relieved of any of its obligations under the Loan Documents as a result of any Assignment or the granting of any participation in all or any part of its rights under the Loan Documents, except that it shall be relieved of its obligations to the extent of any such Assignment of all or any part of its rights and obligations under the Loan Documents pursuant to Section 12.6(b).
(e) Subject to Section 12.6(d), any Lender may at any time or from time to time assign all or any portion of its rights under the Loan Documents to a Federal Reserve Bank, provided that no any such assignment shall not release the transferor Lender such assignor from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:thereunder.
Appears in 2 contracts
Sources: Credit Agreement (Bowne & Co Inc), Credit Agreement (Bowne & Co Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded following a demand by the Borrower such Lender pursuant to Section 8.07(g2.10 or 2.12) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionPaying Agent, will assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more Facilities, (ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or1,000,000 (or such lesser amount as shall be approved by the Paying Agent and, if lessso long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentBorrower), (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Paying Agent, for its acceptance (other than as to assignments to then existing Lenders and/or their Affiliates) and recording in the Register, an Assignment and Assumption, together with any Note or Notes subject to such assignment and together with a processing and recordation fee in the amount of $3,500 3,500; provided, however, that the processing and recordation fee set forth in sub-clause (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and iv) above shall not be payable if (A) with respect to an assignment by any Lender Party to an Affiliate or an Approved Fund of such Lender Party, or (B) with respect to an assignment (x) which is both by and to an existing Lender Party or (y) with a stated effective date occurring prior to the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required 90th day after the occurrence and during the continuance of any Event of Default, and Effective Date hereof.
(vib) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Assumption, (xi) 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 Assumption, have the rights and obligations of a Lender or an Issuing Bank, as the case may be, hereunder and (yii) the Lender or an Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all or of the remaining portion of an assigning Lender’s or an Issuing Bank’s rights and obligations under this Agreement, such Lender or such Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Assumption, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (although i) other than as provided in such Assignment and Assumption, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any 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, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan 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 Section 4.01 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 Assumption; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party 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 each 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 such Agent by the terms hereof and thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender or an Issuing Bank, as the case may be.
(d) The Paying Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lender Parties and the Commitment under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the “Register”). In addition, the Paying Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Assumption executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Paying Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Paying Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Assumption and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment 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 Assumption and shall otherwise be in substantially the form of Exhibit A hereto.
(f) Each Issuing Bank may assign to an Eligible Assignee all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that each such assignment shall be to an Eligible Assignee and the parties to each such assignment shall execute and deliver to the Paying Agent, for its acceptance and recording in the Register, an Assignment and Assumption.
(g) Each Lender Party may sell participations to one or more Persons (other than a natural person, a Defaulting Lender or any Loan Party or any of Affiliates thereof) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender Parties shall continue to be entitled deal solely and directly with such Lender Party in connection with such Lender Party’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to indemnification approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party 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.
(h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.04(c)). 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender Party.
(i) Notwithstanding anything contained any other provision set forth in this Section 8.07(aAgreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances 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.
(j) No such assignment shall be made (A) to the contraryBorrower or any of the Borrower’s Affiliates or Subsidiaries, or (AB) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person.
(k) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Paying Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Paying Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Paying Agent shall not be required or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Advances and purchases of Letters of Credit Advances and Swing Line Advances in accordance with respect to its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment by of rights and obligations of any Defaulting Lender to an Affiliate hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign for all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Agreement until such compliance occurs.
Appears in 2 contracts
Sources: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Assignments and Participations. (a) Each Lender maySubject to the EKN General Conditions, with the prior approval of EKN and the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents which, in the case of the Administrative Agent, shall not be unreasonably withheld or delayedwithheld), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, each Lender may assign to one or more banks or other entities (including any trust or other than an Ineligible InstitutionPerson in connection with a securitization or monetization of the Advances or other indirect raising of capital) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that 125
(i) each such assignment of any Commitments shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of all Commitments;
(ii) except in the assigning 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, (ii) the amount of the Commitment Amount and/or portions of Advances of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, 1,000,000;
(iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall shall:
(A) execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with a processing and recordation fee of $3,500 2,500; and
(which shall be payable by one or more B) deliver a copy of the parties such Assignment and Acceptance to the Assignment and Assumption, and not by Borrower at the Borrower time it delivers a copy to the Administrative Agent; and
(except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (viv) the consent of unless the Borrower shall have consented thereto, no such assignment of undrawn Commitments shall be made:
(A) except to a Person that shall have represented that it has a combined capital and surplus in excess of $50,000,000; and
(B) except to a Person, other than a commercial bank or other financial institution, that shall have represented that such Person is not be required after the occurrence and during the continuance of any Event of Defaultengaged in, and (vi) does not have an Affiliate that is engaged in, the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice business of providing PCS telecommunications services to the Administrative Agent within five public.
(5b) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Assumption, Acceptance:
(xi) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the Intercreditor Agreement have been assigned to it pursuant to such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder and thereunder; and
(yii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement and the Intercreditor Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s '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:
(although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement, the Intercreditor Agreement and each other Loan Document, together with copies of the financial statements referred to in Section 10.1(bb) 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 Administrative Agent or the Arranger, 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 appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto;
(vi) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement and the Intercreditor Agreement are required to be performed by it as a Lender; 127
(vii) such assignee makes the representations set forth in subsection (a)(iv) above and in Section 13.13; and
(viii) such assignee confirms that it is bound by the confidentiality provisions set forth in Section 14.14.
(d) The Administrative Agent shall maintain at its address referred to in Section 14.2 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 Commitments of, and portions of the principal amount of the Advances 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 Borrower, the Administrative 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Affiliate Assignment and Acceptance executed by an assigning Lender and an assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is substantially in the form of Exhibit C, ---------
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register; and
(iii) give prompt notice thereof to the Borrower.
(f) Any Lender may, in connection with any assignment or proposed assignment pursuant to this Section 14.9, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to another Lender any such disclosure, the -------- assignee or participant or proposed assignee or participant shall agree to an Approved Fundpreserve the confidentiality of any Confidential Information received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement to a (including its Commitment Percentage in the Advances) in favor of any Federal Reserve BankBank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(h) Notwithstanding any other provision set forth in this Agreement, provided that no such assignment shall release the transferor any Lender from may at any time assign all or a portion of its rights and obligations hereunderhereunder to EKN in accordance with the EKN Documents. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:128
Appears in 2 contracts
Sources: Loan Agreement (Omnipoint Corp \De\), Loan Agreement (Omnipoint Corp \De\)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (Agent, which consents shall not be unreasonably withheld or delayed)delayed (it being agreed that notwithstanding anything herein, including the proviso set forth below, (x) prior to the Effective Date, the Borrower may withhold such consent in its sole discretion and (y) during the Certain Funds Period the Borrower may withhold such consent in its sole discretion unless a Certain Funds Event of Default has occurred and is continuing) and, in the case of the Borrower, (A) shall not be required while an Event of Default (or during the Certain Funds Period a Certain Funds Event of Default) has occurred and is continuing and (B) shall be deemed given if demanded the Borrower shall not have objected within 10 Business Days following its receipt of notice of such assignment (and, within five days after demand by the Borrower (with a copy of such demand to the Administrative Agent) to (i) any Defaulting Lender, (ii) any Lender) that has made a demand for payment pursuant to Section 8.07(g2.11 or 2.14, (iii) shall any Lender that has asserted pursuant to the extent required by Section 2.08(b) or 2.12 that it is impracticable or unlawful for such SectionLender to make Advances or (iv) any Non-Consenting Lender, such Lender will), assign to one or more banks or other entities Persons (other than an Ineligible Institutionnatural persons) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided that provided, however, that:
(i) such consent shall not be required in the case of an assignment to any other Lender or an Affiliate of any Lender if, subsequent thereto and prior to the Bridge Facility Maturity Date, the Initial Lenders would hold, in the aggregate, at least 51% of the unused Commitments and aggregate outstanding principal amount of Advances; provided, that notice thereof shall have been given to the Borrower and the Administrative Agent;
(ii) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(iii) except in the case of the assigning 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, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, 1,000,000;
(iiiiv) each such assignment shall be to an Eligible Assignee;
(v) each such assignment made as a result of a demand by the Borrower pursuant to this Section 9.07(a) shall be arranged by the Borrower with the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement;
(vi) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 9.07(a), (iv1) so long as an Event of Default shall have occurred and be continuing and (2) unless and until such Lender shall have received one or more payments from one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount, and from the Borrower or one or more Eligible Assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.11, 2.14 or 9.04(c)) and (3) unless and until the Borrower shall have paid (or caused to be paid) to the Administrative Agent a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and
(vii) the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to this Section 9.07(a), the Borrower) shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance and, together with if such assignment does not occur as a result of a demand by the Borrower pursuant to this Section 9.07(a) (in which case the Borrower shall pay the fee required by subclause (vi)(3) of this Section 9.07(a)), a processing and recordation fee of $3,500 (which shall be payable by one or more of 3,500; provided, however, that the parties Administrative Agent may, in its sole discretion, elect to the Assignment waive such processing and Assumption, and not by the Borrower (except recordation fee in the case of any assignment. The assignee, if it is not a demand under Section 8.07(g))Lender, and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice deliver to the Administrative Agent within five (5) Business Days after having received notice thereofan Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Section 9.04(a) and (b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and, in the case of an Assignment and Assumption 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).
(b) 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:
(although 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 any 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) The Administrative Agent, acting solely for this purpose as the agent of the Borrower, shall continue maintain at its address referred to be entitled in Section 9.02(a) a copy of each Assignment and Acceptance delivered to indemnification pursuant and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount (and stated interest) of the Advances owing to, each Lender from time to Section 8.04(c)time (the “Register”). Notwithstanding anything contained The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Section 8.07(aAgreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other entities (other than the contraryBorrower or any of its Affiliates or any natural person) in or to all or a portion of its rights and obligations under this Agreement (including, (Awithout limitation, all or a portion of its Commitment and the Advances owing to it) without the consent of the Administrative Agent or the Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its 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 Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, the Agents 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; and
(v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or stated rate of interest on, the Advances or the stated rate at which any other amounts payable hereunder are calculated, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any other amounts payable hereunder, in each case to the extent subject to such participation. Each Lender shall promptly notify the Borrower after any sale of a participation by such Lender pursuant to this Section 9.07(e); provided that the failure of such Lender to give notice to the Borrower as provided herein shall not affect the validity of such participation or impose any obligations on such Lender or the applicable participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Advances or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Advance or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Each participant shall be entitled to the benefits of Sections 2.11 and 2.14 (subject to the requirements and limitations therein, including the requirements set forth in Section 2.14(f) (it being understood that the documentation required under Section 2.14(f) shall be delivered to the participating Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to this Section 9.07; provided that such participant agrees to be subject to the provisions of Section 9.07 as if it were an assignee. A participant shall not be required entitled to receive any greater payment under Section 2.11 or 2.14 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, unless the Borrower is notified of the participation sold to such participant and the sale of the participation to such participant is made with the Borrower’s prior written consent (not to be unreasonably withheld or delayed).
(f) Any Lender may, in connection with any assignment by or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any Lender information relating to an Affiliate of the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to another any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information relating to the Borrower or any of its Subsidiaries received by it from such Lender or to an Approved Fundas more fully set forth in Section 9.08.
(g) Notwithstanding any other provision set forth in this Agreement, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, its Commitment and the Advances owing to a it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank, provided that no Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Lender.
Appears in 2 contracts
Sources: Bridge Credit Agreement (Equinix Inc), Bridge Credit Agreement (Equinix Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of Exelon, the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the a Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and it, its participation in Facility LCsLCs and any Note or Notes held by it); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and AssumptionAcceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))any Borrower, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower Exelon shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of Exelon, the Borrower LC Issuer and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of Exelon, the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption Acceptance executed, assign all or any part of its rights under this Agreement and any Note to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers 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.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Commitment Amount of, and principal amount of the Advances owing by each Borrower to, each Lender from time to time (the “Register”). For The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Administrative 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 any Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with all Notes, if any, subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it, its participation in Facility LCs and any Note or Notes held by it); provided that (i) such Lender’s obligations under this Agreement 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 Administrative 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 and (v) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement or any Note held by such Lender, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07(a8.07, 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 that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrowers received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If (i) any Lender shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, or (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Rate Advances, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the applicable Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect), as the case may be, the Borrowers may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrowers and reasonably acceptable to the Administrative Agent all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrowers shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrowers shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrowers, the option to provide to any Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Advance, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms “Approved Fund” hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and “Ineligible Institution” have as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the following meanings:Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to the Granting Bank or to any financial institutions (consented to by such Borrower and Administrative Agent, neither of which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 2 contracts
Sources: Credit Agreement (Commonwealth Edison Co), Credit Agreement (Exelon Corp)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gsubsection (g) hereof shall to the extent required by such Sectionsubsection (g), assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances Loan owing to it and its participation in Facility LCsany Note held by it); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the aggregate amount of the Loan and remaining Commitment Amount (if any) of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 10,000,000 or, if less, the entire amount of such Lender’s Loan and remaining Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Loan and remaining Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 4,000 (which shall be payable by one or more of the parties to the Assignment and AssumptionAcceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))Borrower, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer Borrower or the Administrative Agent, and without any requirement to have an Assignment and Assumption Acceptance executed, assign all or any part of its rights under this Agreement and any Note to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers 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.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Commitment of, and principal amount of the Loan owing to, each Lender from time to time (the “Register”). For The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, its Loan and any Note held by it); provided that (i) such Lender’s obligations under this Agreement (including its Commitment (if any)) 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 Borrower, the Administrative 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 and (v) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement or any Note held by such Lender, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07(a8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If (i) any Lender shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14 or (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Rate Advances, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower), or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect), or as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent all (but not less than all) of such Lender’s Commitment (if any) and the Loan owing to it within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment or Loan, then such Lender may (but shall not be required to) assign such Commitment and Loan to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Advance, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms “Approved Fund” hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and “Ineligible Institution” have as if, such Advance were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the following meanings:Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to the Granting Lender or to any financial institutions (consented to by the Borrower and Administrative Agent, neither of which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Lender or an SPC without the written consent of such Granting Lender or SPC.
Appears in 2 contracts
Sources: Term Loan Agreement (Exelon Corp), Term Loan Agreement (Exelon Corp)
Assignments and Participations. (a) Each Lender may, with With the prior written consent of the Borrower, each LC Issuer and the Administrative Agent Borrower (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be (x) required after the occurrence and during the continuance of any if (I) an Event of DefaultDefault has occurred and is continuing or (II) the Assignee is a Lender, and an Affiliate of a Lender or an Approved Fund, or (viy) other than with respect to Direct Competitors, unreasonably withheld, conditioned or delayed; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) ten Business Days after having received notice thereof) and the Administrative Agent (which consent of the Administrative Agent shall not (x) be required if the Assignee is a Lender, an Affiliate of a Lender or an Approved Fund (y) unreasonably withheld, conditioned or delayed), any Lender may assign and delegate to one or more assignees (each an “Assignee”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Loans and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000 (or the remaining amount of any Lender’s Loans, if less); provided, however, that the Borrower, the Administrative Agent, and the Collateral Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information including any documentation required pursuant to Section 2.19(e), (f) and (g) with respect to the Assignee, have been given to the Borrower, the Administrative Agent, and the Collateral Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to the Borrower, the Administrative Agent, and the Collateral Agent an Assignment and Acceptance, fully executed and delivered by each party thereto, and (iii) the assigning Lender or Assignee has paid to the Administrative Agent for the Administrative Agent’s separate account a processing fee in the amount of $3,500. Upon Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee and the consent of the Borrower shall not be required if such executionassignment is in connection with any merger, deliveryconsolidation, acceptance sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and recordingAcceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall provide a copy of the Register to the Collateral Agent at any time and from time to time upon request of the Collateral Agent and the Collateral Agent shall be entitled to rely on the same, and to treat each Person whose name is recorded in the Register most recently received by the Collateral Agent pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.
(b) From and after the effective date specified in each that the Administrative Agent notifies the assigning Lender (with a copy to the Borrower) that it has received an executed Assignment and AssumptionAcceptance satisfying clause (a) above and payment of the above-referenced processing fee, (xi) the assignee 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 AssumptionAcceptance, shall have the rights and obligations of a Lender hereunder under the Loan Documents, and (yii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (except with respect to Section 8.2) and be released from its any future obligations under this Agreement and, (and in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this AgreementAgreement and the other Loan Documents, such Lender shall cease to be a party hereto (although an assigning Lender and thereto), and such assignment shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of effect a novation between the Borrower and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 8.2(b) of this Agreement relating to any period prior to the effectiveness of such assignment.
(c) Immediately upon the Administrative Agent Agent’s receipt of the required processing fee payment and the fully executed Assignment and Acceptance satisfying clause (a) above, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Loans arising therefrom. The Loans allocated to each Assignee shall reduce such Loans of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender and who are not Direct Competitors (a “Participant”) participating interests in its Obligations, its Loans and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Loans and the other rights and interests of the Originating Lender hereunder shall not be required constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrower, the Administrative Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any assignment by other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the guaranties (except to the extent expressly provided herein or in any Lender of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to an Affiliate such Participant through such Lender, or (E) change the amount or due dates of such Lender scheduled principal repayments or to another Lender prepayments or to an Approved Fundpremiums, and (Bv) all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, the Administrative Agent, the Borrower, its Subsidiaries, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. Each Originating Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.
(e) In connection with any such assignment or participation or proposed assignment or participation, a Lender may, subject to the provisions of Section 11.11, disclose all documents and information which it now or hereafter may have relating to the Borrower and its Subsidiaries and their respective businesses.
(f) Any other provision in this Agreement notwithstanding, any Lender may at any timetime create a security interest in, without the consent of the Borroweror pledge, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part portion of its rights under and interest in this Agreement to a in favor of any Federal Reserve BankBank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24 or any other central bank having jurisdiction over such Lender, provided that no and such assignment shall release the transferor Lender from Federal Reserve Bank or other central bank may enforce such pledge or security interest in any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:manner permitted under applicable law.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Fifth Street Asset Management Inc.)
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.11 or 2.14) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAgent, will assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under any Facility under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement with respect to one of more Facilities, (ii) except in the assigning 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 AgreementAgreement with respect to a Facility, (ii) the amount of the Commitment Amount under such Facility of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof unless the Borrower and the Agent otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 (which payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), and shall not be payable if an assignment made at the assignee is a Federal Reserve Bank), (v) the consent request of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofan Eligible Assignee that is an existing Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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).
(b) 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: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with this Agreement 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 instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 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 this Agreement 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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 C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in Section 8.02 a copy of each Assumption Agreement and 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 Commitments of, and principal amount of the Advances 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 Borrower, 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 Borrower or any Lender at any reasonable time and from time to an Affiliate time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other entities (other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and any Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender or shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders shall continue to another deal solely and directly with such Lender or to an Approved Fund, in connection with such Lender’s rights and obligations under this Agreement and (Bv) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Note, or any consent to any departure by the Borrower 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, or 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.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Borrower Information relating to the Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Advances owing to a it and any Note or Notes held by it) in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Lender from any Board of its obligations hereunder. For Governors of the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Federal Reserve System.
Appears in 2 contracts
Sources: Credit Agreement (Embarq CORP), Credit Agreement (Embarq CORP)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer upon at least five Business Days’ notice to such Lender and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such SectionAgent, assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of any or all of the assigning Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments or Advances being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or(or such lesser amount as shall be approved by the Administrative Agent and, if lessso long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentBorrowers), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 3,500.
(which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (vb) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AssumptionAcceptance, (xi) 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 AssumptionAcceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (yii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any 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, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan 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 Section 4.01 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 any Agent, such assigning Lender Party or any other Lender Party 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 each 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 such Agent by the terms hereof and thereof, 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 that by the terms of this Agreement are required to be entitled performed by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to indemnification pursuant in Section 8.02 a copy of each Assignment and Acceptance delivered to Section 8.04(c)and accepted by it and a register for the recordation of the names and addresses of the Lender Parties and the Commitment under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party 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 Agents and the Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(e) Notwithstanding anything to the contrary contained in this Section 8.07(aclause (b) above, the Advances (including the Notes evidencing such Advances) are registered obligations and the right, title, and interest of the Lender Parties and their assignees in and to such Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender Party’s or an assignee’s right title and interest in and to the contraryrelated Advance, (Aand in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) the consent and 881(c)(2) of the Borrower Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall not be required act as the Borrowers’ agent for purposes of maintaining such notations of transfer in the Register.
(f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with respect any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Commitment retained by it hereunder. Such amended and restated 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 form of Exhibit A hereto.
(g) The Issuing Bank may assign to an Affiliate Eligible Assignee all of such Lender or to another Lender or to an Approved Fund, its rights and (B) any Lender may obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, without however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the consent of the Borrower, any LC Issuer or parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and without any requirement to have recording in the Register, an Assignment and Assumption executedAcceptance, assign together with a processing and recordation fee of $3,500.
(h) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender Party’s obligations under this Agreement (including its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Agents and the other Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such Lender Party’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lender Parties.
(i) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender Party 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 to preserve the confidentiality of any Confidential Information received by it from such Lender Party in accordance with the terms of Section 8.10.
(j) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any part portion of its rights under this Agreement (including the Advances owing to a it and the Note or Notes held by it) in favor of any Federal Reserve BankBank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(k) Notwithstanding anything to the contrary contained herein, provided any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such assignment pledge shall release the transferor pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.
(l) Notwithstanding anything to the contrary contained herein, any Lender Party (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.10 and 2.12 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. For In furtherance of the purposes foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Section 8.07(a)Agreement) that, prior to the terms “Approved Fund” date that is one year and “Ineligible Institution” have one day after the following meanings:payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Advances are being funded by the SPC at the time of such amendment.
Appears in 2 contracts
Sources: Revolving Credit Agreement (BMCA Acquisition Sub Inc.), Revolving Credit Agreement (Building Materials Manufacturing Corp)
Assignments and Participations. (a) Each Lender Bank may, with upon obtaining the prior written consent of the Borrower, each LC Issuer and the Administrative Agent Company (which consents consent shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning LenderBank’s rights and obligations under this Agreementso assigned, (ii) the amount of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) may be in the amount of such Bank’s entire Commitment but otherwise shall in no event not be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentunless the Company and the Agent otherwise consent, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of 3,000; and provided, further, that, notwithstanding the parties to the Assignment and Assumptionforegoing, and not by the Borrower (except in the case of a demand under Section 8.07(g))each Bank may, and shall not be payable if the assignee is a Federal Reserve Bank), (v) without the consent of the Borrower shall not be required after Company and without the occurrence payment of the processing and during recordation fee, assign to one or more Affiliates of such Bank all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the continuance of any Event of Default, Advances owing to it and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto Note or Notes held by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofit). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, which effective date shall be at least two Business Days after the execution thereof, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender Bank hereunder and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance 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 hereto).
(although b) By executing and delivering an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to Assignment and Acceptance, the contrary, (A) the consent of the Borrower Bank assignor thereunder and the Administrative Agent shall not be required 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 Bank makes no representation or warranty and assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or the performance or observance by the Company of any Lender of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 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 Bank or any other 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 Affiliate 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 as are delegated to the Agent by the terms hereof, together with such powers 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 Bank.
(c) The Agent shall maintain at its address referred to in Section 9.02 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 Banks and the Commitment of, and principal amount of the Advances owing to, each Bank from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Company, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Company or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee representing that it is an Eligible Assignee, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company.
(e) Each Bank may sell participations to one or more banks or other entities in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it and the Note or Notes held by it); provided, however, that (i) such Bank’s obligations under this Agreement (including, without limitation, its Commitment to the Company hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such Lender or obligations, (iii) such Bank shall remain the holder of any such Note and the maker of any Advance for all purposes of this Agreement, (iv) the Company, the Agent and the other Banks shall continue to another Lender or to an Approved Funddeal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and (Bv) any Lender may agreement between such Bank and any participant in connection with such participating interest shall not restrict such Bank’s right to agree to any amendment or waiver of any provision of this Agreement, or any consent to any departure by the Company therefrom, except (to the extent such participant would be affected thereby) a reduction of the principal of, or interest on, any Advance or postponement of any date fixed for payment thereof.
(f) Any Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.08, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Company furnished to such Bank by or on behalf of the Company; provided that, prior to any such disclosure of non-public information, such Bank shall have obtained the Company’s consent (which consent shall not be unreasonably withheld or delayed) and, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Company received by it from such Bank.
(g) Notwithstanding any other provisions set forth in this Agreement, any Bank at any timetime may assign, without the consent of the Borroweras collateral or otherwise, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights (including, without limitation, rights to payments of principal of and/or interest on the Advances) under this Agreement to a any Federal Reserve BankBank without notice to or consent of the Company, provided that no such assignment shall release any other Bank or the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Agent.
Appears in 2 contracts
Sources: Credit Agreement (Ecolab Inc), Credit Agreement (Ecolab Inc)
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrowerso long as no Default shall have occurred and be continuing, each LC Issuer if demanded by BRW (following a demand by such Lender pursuant to Section 2.10 or 2.12) upon at least five Business Days’ notice to such Lender and the Administrative Agent (which consents shall not be unreasonably withheld or delayed)Agent, and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, will assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more Facilities, (ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 1,000,000 or an integral multiple of $1,000,000 in excess thereof (or such Lender’s entire Commitmentlesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the Borrowers) under each Facility for which a Commitment is being assigned; provided, that in the event of concurrent assignments to two or more Related Funds, all such concurrent assignments shall be aggregated in determining compliance with this requirement, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrowers pursuant to this Section 9.07(a) shall be arranged by the Borrowers after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrowers pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) [intentionally omitted] and (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 (which 3,500; provided, however, that for each such assignment made as a result of a demand by any Borrower pursuant to this Section 9.07(a), such Borrower shall pay to the Administrative Agent the applicable processing and recordation fee; provided further, that no such fee shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of any assignment to a demand under Section 8.07(g)Related Fund; and provided still further that, in the case of contemporaneous assignments by a Lender to more than one fund managed by the same investment advisor (which funds are not then Lenders hereunder), and only a single such fee shall not be payable if the assignee is a Federal Reserve Bank), for such contemporaneous assignments.
(vb) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AssumptionAcceptance, (xi) 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 AssumptionAcceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (yii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower Party makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any 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, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan 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 Section 4.01 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 any Agent, such assigning Lender Party or any other Lender Party 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 each 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 such Agent by the terms hereof and thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but only for this purpose) as the agent of each of the Borrowers, shall maintain at its address referred to in Section 9.02 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 Lender Parties and the Commitment under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Agents and the Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by any Borrower or any Agent or any Lender Party 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 Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C 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 and each other Agent. In the case of any assignment by any Lender to an Affiliate a Lender, within five Business Days after its receipt of such notice, each Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to another Lender 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 form of Exhibit A-1 or A-2 hereto, as the case may be.
(f) Each Issuing Bank may assign to an Approved Fund, one or more Eligible Assignees all or a portion of its rights and (B) any Lender may obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, without however, that (i) except in the consent case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights and obligations under this Agreement, the amount of the BorrowerLetter of Credit Commitment of the assigning Issuing Bank 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 and shall be in an integral multiple of $1,000,000 in excess thereof, any LC Issuer or (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and without any requirement to have recording in the Register, an Assignment and Assumption executedAcceptance, assign together with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Agents and the other Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such Lender Party’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party 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.
(h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender Party 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 to preserve the confidentiality of any Confidential Information received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Advances 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.
(j) Notwithstanding anything to the contrary contained herein, any Lender Party, (a “Granting Lender”) may grant to a Federal Reserve Bank, special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers (an “SPC”) the option to provide all or any part of any Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would otherwise be liable for so long as, and to the extent, the Granting Lender provides such assignment indemnity or makes such payment and (ii) no SPC shall release be entitled to the transferor Lender from benefits of Sections 2.10 and 2.12 (or any other increased costs protection provision). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, the Borrower, the Syndication Agent and the Administrative Agent and without paying any processing fee therefor, assign all or any portion of its obligations hereunderinterest in any Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection 9.07(j) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Advances are being funded by the SPC at the time of such amendment. For the purposes avoidance of this Section 8.07(a)doubt, with respect to the Agents, the terms “Approved Fund” other Lender Parties and “Ineligible Institution” have the following meanings:Borrowers, the Granting Bank shall for all purposes, including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, be the Lender Party of record hereunder.
(k) Notwithstanding any other provision set forth in this Agreement, any Lender Party that is a fund that invests in bank loans may pledge all or any portion of its rights in connection with this Agreement to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities; provided that nothing contained herein shall affect any obligations of the
Appears in 2 contracts
Sources: Credit Agreement (Broadwing Communications Inc), Credit Agreement (Broadwing Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, Bank may assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion percentage interest of its rights and obligations under this Agreement (including all but if less than all, then such assignment shall be in an amount equal to $5,000,000 or an integral multiple thereof and such assigning Bank shall continue to hold a portion Share of its Commitmentat least $5,000,000, the Advances owing to it and its participation in Facility LCs); provided provided, that (i) no assignment by any Bank may be made to any Eligible Assignee, except with the prior written consent of (A) the Company, which consent shall not be unreasonably withheld or delayed and shall not be required (1) in the case of an assignment to a Bank, an Affiliate of a Bank or an Approved Fund, or (2) if an Event of Default shall have occurred and be continuing and (B) the L/C Issuers, which consent may be given or withheld in the sole discretion of the L/C Issuers; (ii) the L/C Issuers may not assign their direct obligations under the Letters of Credit, and (iii) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lenderassignor’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the . The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance Agent an instrument of assignment in form and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice substance satisfactory to the Administrative Agent within five (5) Business Days after having received notice thereofand the Company, and a processing fee of $3,500, and the Administrative Agent will record in a register maintained for such purpose the name of the assignee and the percentage participation interest assigned by the assignor and assumed by the assignee for purposes of the determination of such assignor’s and assignee’s respective Shares. Upon such execution, delivery, fee payment, acceptance and recording, from and after the effective date specified in each Assignment and Assumptionassignment, (x) which effective date shall be at least five Business Days after the delivery thereof to the Administrative Agent, the assignee thereunder shall be a party hereto andshall, to the extent that rights of such assignment, become a party hereto and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, have all of the rights and obligations of a Lender Bank hereunder and (y) the Lender assignor thereunder shalland, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Assumptionassignment, relinquish its rights and such assigning Bank shall be released from its obligations hereunder but shall continue to be entitled to the benefits of Sections 2.08, 2.16, 8.05, 8.06 and 8.07 (without relieving such Bank from any liability for damages, costs and expenses suffered by the Administrative Agent, the L/C Issuers or the Company as a result of the failure by such Bank to perform its obligations hereunder).
(b) Each Bank may grant participations to one or more Persons in all or any part of, or any interest (undivided or divided) in, such Bank’s rights and/or obligations under this Agreement and(any such Person being referred to herein as a “Participant”); provided, however, that (i) such Bank’s obligations under this Agreement shall remain unchanged; (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) in no event shall such Bank be obligated to the Participant to take or refrain from taking any action hereunder, except that such Bank may agree with the Participant that it will not, without the consent of the Participant, agree to (A) the extension of any L/C Expiration Date or of any date fixed for the payment of principal of or interest, fees (if the Participant is entitled to any part thereof) or any other payment (if the Participant is entitled to any part thereof) pursuant to this Agreement or the Reimbursement Obligations, (B) the reduction of any payment of principal thereof, or (C) the reduction of the rate at which either interest is payable thereon or (if the Participant is entitled to any part thereof) the reduction of the fees payable hereunder to a level below the rate at which the Participant is entitled to receive interest or such fees (as the case of an Assignment may be) in respect to such participation; (iv) the Company, the L/C Issuers and Assumption covering all or the remaining portion of an assigning LenderAdministrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, ; and (v) such Lender Participant shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant the cost protection provisions provided for in Sections 2.08 and 2.16; provided, further, that the amount of such cost protection shall not exceed the amount of cost protection to which such Bank selling such participation would have been entitled under Section 8.04(c))2.08 or 2.16, as the case may be. Promptly after any Bank grants any such participation, such Bank shall inform the Company of the identity of the Participant and the amount of such participation.
(c) Notwithstanding anything contained any other provision set forth in this Section 8.07(a) to the contraryAgreement, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender Bank may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including the Advances owed to a it) in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Lender from any Board of its obligations hereunder. For Governors of the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Federal Reserve System.
Appears in 2 contracts
Sources: Letter of Credit and Reimbursement Agreement, Letter of Credit and Reimbursement Agreement (Commonwealth Edison Co)
Assignments and Participations. (a) Each Lender Bank may, with upon obtaining the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents consent by any such party shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it Commitment and its participation in Facility LCsNote or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning LenderBank’s rights and obligations under this Agreementso assigned, (ii) the amount of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) may be in the amount of such Bank’s entire Commitment but otherwise shall in no event not be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentunless the Borrower and the Agent otherwise consent, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall (A) execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register, an Assignment and Assumption, together with Acceptance and (B) deliver to the Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of 3,500; provided that the parties Agent may, in its sole discretion, elect to the Assignment waive such processing and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank)recording fee, (v) if no Event of Default has occurred and is continuing, the prior written consent of the Borrower (which consent shall not be unreasonably withheld or delayed) shall be required after the occurrence and during the continuance for an assignment by a Bank to an assignee which is not a Bank or an Affiliate or Approved Fund of any Event of Defaulta Bank, and (vi) consent of the Borrower Agent shall not be deemed required for an assignment by a Bank to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofan assignee which is a Bank or an Affiliate or Approved Fund of a Bank. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) the assignee thereunder which effective date shall be a party hereto andat least two Business Days after the execution thereof, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance 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 hereto).
(although b) By executing and delivering an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to Assignment and Acceptance, the contrary, (A) the consent of the Borrower Bank assignor thereunder and the Administrative Agent shall not be required 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 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) or 5.01(b) 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 Bank or any other 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 on its behalf and to exercise such powers under this Agreement as are delegated to the Agent by the terms hereof, together with such powers 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 Bank.
(c) The Agent (or a party designated by the Agent, which may include the Borrower) shall maintain at its address referred to in Section 9.02 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 Banks and the Commitment of, and principal amount of the Advances owing to, each Bank from time to time (the “Register”). The Agent (or its designee) shall also reflect in the Register the transfer of any portion of any Bank’s interest in the Notes, any Advances not evidenced by a Note or any other obligations hereunder (collectively, the “Obligations”), and the Agent (or its designee) shall retain a copy of the assignment transferring the Obligations for the registration or transfer of the Obligations, and shall enter the names and addresses of the transferees of the Obligations. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks shall treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower at any Lender reasonable time and from time to an Affiliate time upon reasonable prior notice. Solely for purposes of this Section 9.08(c) and for tax purposes only, the Agent (or its designee) shall be the Borrower’s agent for purposes of maintaining the Register and notations of transfer in the Register. The Obligations are registered obligations and the right, title and interest of any Bank and/or its assignees in and to such Obligations shall be transferable only upon notation of such Lender transfer in the Register (and each Note shall expressly so provide). This Section 9.08(c) shall be construed so that the Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related Treasury Regulations.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee representing that it is an Eligible Assignee, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Bank may sell participations to one or more banks or other entities in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and Note or Notes held by it); provided, however, that (i) such Bank’s obligations under this Agreement (including, without limitation, its Commitment to another Lender the Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of any such Note and the maker of any Advance for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and (v) any agreement between such Bank and any participant in connection with such participating interest shall not restrict such Bank’s right to agree to any amendment or waiver of any provision of this Agreement, or any consent to any departure by the Borrower therefrom, except (to the extent such participant would be affected thereby) a reduction of the principal of, or interest on, any Advance or postponement of any date fixed for payment thereof. Each Bank that sells a participation shall, acting solely for this purpose as an Approved Fundagent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the obligations under this Agreement (the “Participant Register”); provided that no Bank shall have any obligation to disclose any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under this Agreement) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(f) The Borrower agrees that each participant shall be entitled to the benefits of Sections 2.15 and 2.20 (subject to the requirements and limitations therein, including the requirements under Section 2.20(f) (it being understood that the documentation required under Section 2.20(f) shall be delivered to the participating Bank)) to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that such participant (A) agrees to be subject to the provisions of Sections 2.20(i) and 2.21 as if it were an assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any Lender may greater payment under Sections 2.15 or 2.20, with respect to any participation, than its participating Bank would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation.
(g) Notwithstanding any other provisions set forth in this Agreement, any Bank at any timetime may assign, as collateral or otherwise, any of its rights (including, without limitation, rights to payments of principal of and/or interest on the Advances) under this Agreement to any Federal Reserve Bank or any central bank having jurisdiction over such Bank without notice to or consent of the Borrower, any LC Issuer other Bank or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Ecolab Inc), 364 Day Credit Agreement (Ecolab Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.07, 2.11, 3.08 or 4.02, upon at least 10 days’ notice to such Lender and the Agent) shall to the extent required by such Sectionwill, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion portion, respectively, of its Commitment, the Advances owing to it it, its Issuing Commitment and its participation participations in Facility LCsLetter of Credit Liability and Swing Line Advances); provided provided, however, that (i) each such respective assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement in respect of the assigning Lender’s rights Commitment, Advances, its Issuing Commitment and obligations under this Agreementparticipations in Letter of Credit Liability and Swing Line Advances, that is constant and not varying over time, (ii) the respective amounts of the rights and obligations under the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such partial assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be (or an integral multiple of $1,000,000 or such Lender’s entire Commitment500,000 in excess thereof), (iii) except during the continuance of a Default, each such assignment shall be to an Eligible AssigneeAssignee consented to by the Borrower (following reasonable advance written notice to the Borrower, which consent shall not be unreasonably withheld); provided, that, the Borrower’s consent need not be obtained if such assignment is made to another Lender or to an Affiliate of the assigning Lender, provided that any Lender so assigning to any of its Affiliates shall give prompt notice thereof to the Borrower and the Agent, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 10.07(a) shall be arranged by the Borrower (at its expense, including, without limitation, payment of the processing and recordation fee referred to in subclause (vii) hereof) after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments which together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 10.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) each such assignment shall be consented to by each Issuing Bank and the Agent (which consent of the Agent shall not be unreasonably withheld) and (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with a processing and recordation fee of $3,500 (which 3,500; provided, that, no such fee shall be payable in connection with an assignment by one or more an assigning Lender to an Affiliate of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofassigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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).
(b) 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: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment by statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent financial condition of the Borrower, any LC Issuer Subsidiary, any Subsidiary Borrower or any other Loan Party or the Administrative Agentperformance or observance by the Borrower, and without any requirement to have an Assignment and Assumption executedLC Subsidiary, assign all any Subsidiary Borrower or any part other Loan Party of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 6.01 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, any Issuing Bank, 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 or the respective Issuing Bank to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Agent or such Issuing Bank by the terms hereof, together with such powers 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 Lender.
(c) The Agent shall maintain at its address referred to in Section 10.02 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 Commitment of, and principal amount of the Advances owing to, each Lender from time to time and the names and addresses and the Issuing Commitments of each Issuing Bank from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and the Issuing Banks.
(e) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it; provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its 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 owner of any Advance for all purposes of this Agreement, and (iv) the Borrower, the Issuing Banks, 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, provided, further, that, to the extent of any such participation (unless otherwise stated therein and subject to the preceding proviso), the purchaser of such participation shall, to the fullest extent permitted by law, have the same rights and benefits hereunder as it would have if it were Lender hereunder; and provided, further, that each such participation shall be granted pursuant to an agreement providing that the purchaser thereof shall not have the right to consent or object to any action by the selling Lender (who shall retain such right) other than an action which would (i) reduce principal of or interest on any Advance, any amount due hereunder with respect to the Letters of Credit or other amounts or fees in which such purchaser has an interest, (ii) postpone any date fixed for payment of principal of or interest on any such Advance, such amounts due with respect to Letters of Credit or other amounts or such fees, (iii) extend the Termination Date or (iv) release the Borrower as a guarantor under Section 4.05.
(f) Upon written request of the Borrower to a Lender, such Lender shall, to the extent consistent with the policies of such Lender, inform the Borrower of the Dollar amount of any Full Term Participation (as hereinafter defined) that such Lender has entered into; provided, however, that no Lender shall be obligated to disclose such information if the disclosure thereof would constitute a violation of law or regulation or violate any confidentiality agreement to which such Lender is subject. For the purposes of this Section 8.07(asubsection (f), “Full Term Participation” means a participation by a Lender to another Person whereby such other Person has purchased (pursuant to a participation agreement) all or a portion of such Lender’s Commitment from the terms “Approved Fund” and “Ineligible Institution” have effective date of such participation agreement to the following meanings:Termination Date.
Appears in 2 contracts
Sources: Credit Agreement (Gap Inc), Credit Agreement (Gap Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded following a demand by the Borrower such Lender pursuant to Section 8.07(g2.10 or 2.12) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionPaying Agent, will assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more Facilities, (ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or1,000,000 (or such lesser amount as shall be approved by the Paying Agent and, if lessso long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentBorrower), (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Paying Agent, for its acceptance (other than as to assignments to then existing Lenders and/or their Affiliates) and recording in the Register, an Assignment and Assumption, together with any Note or Notes subject to such assignment and together with a processing and recordation fee in the amount of $3,500 3,500; provided, however, that the processing and recordation fee set forth in sub-clause (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and iv) above shall not be payable if (A) with respect to an assignment by any Lender Party to an Affiliate or an Approved Fund of such Lender Party, or (B) with respect to an assignment (x) which is both by and to an existing Lender Party or (y) with a stated effective date occurring prior to the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required 90th day after the occurrence and during the continuance of any Event of Default, and Closing Date hereof.
(vib) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Assumption, (xi) 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 Assumption, have the rights and obligations of a Lender or an Issuing Bank, as the case may be, hereunder and (yii) the Lender or an Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all or of the remaining portion of an assigning Lender’s or an Issuing Bank’s rights and obligations under this Agreement, such Lender or such Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Assumption, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (although i) other than as provided in such Assignment and Assumption, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any 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, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan 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 Section 4.01 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 Assumption; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party 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 each 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 such Agent by the terms hereof and thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender or an Issuing Bank, as the case may be.
(d) The Paying Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lender Parties and the Commitment under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the “Register”). In addition, the Paying Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Assumption executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Paying Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Paying Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Assumption and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment 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 Assumption and shall otherwise be in substantially the form of Exhibit A hereto.
(f) Each Issuing Bank may assign to an Eligible Assignee all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that each such assignment shall be to an Eligible Assignee and the parties to each such assignment shall execute and deliver to the Paying Agent, for its acceptance and recording in the Register, an Assignment and Assumption.
(g) Each Lender Party may sell participations to one or more Persons (other than a natural person, a Defaulting Lender or any Loan Party or any of Affiliates thereof) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender Parties shall continue to be entitled deal solely and directly with such Lender Party in connection with such Lender Party’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to indemnification approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party 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.
(h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.04(c)). 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender Party.
(i) Notwithstanding anything contained any other provision set forth in this Section 8.07(aAgreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances 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.
(j) No such assignment shall be made (A) to the contraryBorrower or any of the Borrower’s Affiliates or Subsidiaries, or (AB) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person.
(k) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Paying Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Paying Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Paying Agent shall not be required or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Advances and purchases of Letters of Credit Advances and Swing Line Advances in accordance with respect to its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment by of rights and obligations of any Defaulting Lender to an Affiliate hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign for all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Agreement until such compliance occurs.
Appears in 2 contracts
Sources: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Assignments and Participations. (a) Each Lender Bank may, with upon obtaining the prior written consent of the Borrower, Agent and each LC Issuer and the Administrative Agent Issuing Bank (which consents consent by any such party shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement and, on a percentage basis equal to the percentage of the Commitment being assigned, under any Local Currency Addendum (including including, without limitation, all or a portion of its Commitment, any Local Currency Commitment, the Advances owing to it and its participation in Facility LCsthe Letter of Credit Participations and Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning LenderBank’s rights and obligations under this Agreementso assigned, (ii) the amount of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) may be in the amount of such Bank’s entire Commitment but otherwise shall in no event not be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentunless the Company and the Agent otherwise consent, (iii) each such assignment shall be to an Eligible Assignee, and in the case of an assignment of rights and obligations under a Local Currency Addendum, each such assignment shall be to an entity that qualifies as an Eligible Local Currency Bank under the terms of such Local Currency Addendum, (iv) the parties to each such assignment shall (A) execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register, an Assignment and Assumption, together with Acceptance (and such other document or documents as may be required by any applicable Local Currency Addendum) and (B) deliver to the Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption3,000, and not by the Borrower (except in the case of an assignment by a demand under Section 8.07(g))Bank to an Affiliate; and (v) if no Event of Default has occurred and is continuing, and the prior written consent of the Company (which consent shall not be payable if the assignee is a Federal Reserve Bank), (vunreasonably withheld or delayed) the consent of the Borrower shall not be required after the occurrence and during the continuance for an assignment by a Bank to an assignee which is not a Bank or an Affiliate of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofa Bank. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, which effective date shall be at least two Business Days after the execution thereof, (x) the assignee thereunder shall be a party hereto and to any Local Currency Addendum, if applicable, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender Bank hereunder and under any such Local Currency Addendum and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement and under any such Local Currency Addendum (and, in the case of an Assignment and Assumption Acceptance 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 and to any such Local Currency Addendum).
(although b) By executing and delivering an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to Assignment and Acceptance, the contrary, (A) the consent of the Borrower Bank assignor thereunder and the Administrative Agent shall not be required 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 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 Local Currency Addendum or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or any Borrowing Subsidiary or the performance or observance by the Company or any Borrowing Subsidiary of any of its obligations under this Agreement or any Local Currency Addendum or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, and any applicable Local Currency Addendum, together with copies of the financial statements referred to in Section 4.01 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 Bank or any other 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 and, if applicable, an Eligible Local Currency Bank; (vi) such assignee appoints and authorizes each of the Agent, the Euro-Agent and any Local Currency Agent, if applicable, to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Agent, the Euro-Agent, and any such Local Currency Agent, as applicable, by the terms hereof and of any applicable Local Currency Addendum, together with such powers 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 and of any applicable Local Currency Addendum are required to be performed by it as a Bank.
(c) The Agent (or a party designated by the Agent, which may include the Company or any other Borrower) shall maintain at its address referred to in Section 9.02 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 Banks and the Issuing Banks and the Commitment of, and principal amount of the Advances owing to, each Bank and the amount of the Letter of Credit Reimbursement Obligations owing to each Issuing Bank from time to time (the “Register”). The Agent (or its designee) shall also reflect in the Register the transfer of any portion of any Bank’s interest in the Notes, any Advances not evidenced by a Note, any Letter of Credit Reimbursement Obligation or any other obligations hereunder (collectively, the “Obligations”), and the Agent (or its designee) shall retain a copy of the assignment transferring the Obligations for the registration or transfer of the Obligations, and shall enter the names and addresses of the transferees of the Obligations. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent, the Euro-Agent, any Local Currency Agent, the Banks and the Issuing Banks shall treat each Person whose name is recorded in the Register as a Bank or an Issuing Bank, as applicable, hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender Bank at any reasonable time and from time to an Affiliate time upon reasonable prior notice. Solely for purposes of this Section 9.08(c) and for tax purposes only, the Agent (or its designee) shall be the Company’s agent for purposes of maintaining the Register and notations of transfer in the Register. The Obligations are registered obligations and the right, title and interest of any Bank or Issuing Bank and/or its assignees in and to such Obligations shall be transferable only upon notation of such Lender transfer in the Register (and each Note shall expressly so provide). This Section 9.08(c) shall be construed so that the Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related Treasury Regulations.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee representing that (x) it is an Eligible Assignee, and, (y) in the case of an assignment of rights and obligations under a Local Currency Addendum, representing that it is (or its Affiliate, branch or agency which will be the Local Currency Bank is) an Eligible Local Currency Bank under the terms of such Local Currency Addendum, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C-1 hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to another Lender the Borrowers.
(e) Each Bank may sell participations to one or more banks or other entities in all or a portion of its rights and obligations under this Agreement and, on a percentage basis equal to an Approved Fundthe percentage of the Commitment so participated, any applicable Local Currency Addendum (including, without limitation, all or a portion of its Commitment and the Advances owing to it and the Letter of Credit Participations and Note or Notes held by it); provided, however, that (i) such Bank’s obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) and any applicable Local Currency Addendum shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of any such Note and Letter of Credit Participations and the maker of any Advance for all purposes of this Agreement, (iv) the Borrowers, the Agent, the Euro-Agent, any Issuing Bank, any Local Currency Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and (Bv) any Lender may agreement between such Bank and any participant in connection with such participating interest shall not restrict such Bank’s right to agree to any amendment or waiver of any provision of this Agreement or any applicable Local Currency Addendum, or any consent to any departure by any Borrower therefrom, except (to the extent such participant would be affected thereby) a reduction of the principal of, or interest on, any Advance or postponement of any date fixed for payment thereof or a release of the Company’s guaranty obligations pursuant to Article VIII.
(f) Any Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.08, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrowers furnished to such Bank by or on behalf of the Borrowers; provided that, prior to any such disclosure of non-public information, such Bank shall have obtained the Company’s consent (which consent shall not be unreasonably withheld or delayed) and, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrowers received by it from such Bank.
(g) Notwithstanding any other provisions set forth in this Agreement, any Bank at any timetime may assign, without the consent of the Borroweras collateral or otherwise, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights (including, without limitation, rights to payments of principal of and/or interest on the Advances) under this Agreement to a any Federal Reserve Bank without notice to or consent of the Company, any Borrowing Subsidiary, any other Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a)Agent, the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Euro-Agent or any Local Currency Agent.
Appears in 2 contracts
Sources: Multicurrency Credit Agreement (Ecolab Inc), Multicurrency Credit Agreement (Ecolab Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 1,000,000 or, if less, the entire amount of such Lender’s CommitmentCommitment Amount, and shall be an integral multiple of $1,000,000 500,000 or such Lender’s entire CommitmentCommitment Amount, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer Borrower or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:
Appears in 2 contracts
Sources: Credit Agreement (Atlantic City Electric Co), Credit Agreement (Atlantic City Electric Co)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (neither of which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gsubsection (g) hereof shall to the extent required by such Sectionsubsection (g), assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s 's rights and obligations under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 10,000,000 or, if less, the entire amount of such Lender’s 's Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s 's entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and AssumptionAcceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))Borrower, and shall not be payable if the assignee is a Bank, any Affiliate of any Bank or the Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer Borrower or the Administrative Agent, and without any requirement to have an Assignment and Assumption Acceptance executed, assign all or any part of its rights under this Agreement and its Notes to a Federal Reserve Bank, provided that no such assignment shall does not release the transferor Lender from any of its obligations hereunder.
(b) 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers 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.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance and each Additional Lender Supplement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the "Register"). For The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder, a new Note to the order of the assigning Lender in an amount equal to the Commitment 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 form of Exhibit A hereto.
(e) Each Lender may sell participations to one or more banks or other entities (each, a "Participant") in or to all or a portion of its rights and/or obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided, however, that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) 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 Borrower, the Administrative 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 and (v) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement or the Note or Notes held by such Lender, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07(a8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If (i) any Lender shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, or (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Rate Advances or (iii) shall fail to consent to, or shall revoke its consent to, the extension of any Termination Date pursuant to Section 2.16 or (iv) shall fail to consent to, or shall revoke its consent to, any extension of the "Termination Date" (as defined in the Revolving Credit Agreement) requested by the Borrower pursuant to Section 2.16 of the Revolving Credit Agreement as originally constituted (or any successor provision of similar import), then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower), or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect), or (in the case of clauses (iii) and (iv)) no later than 10 days prior to the then effective Termination Date, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent all (but not less than all) of such Lender's Commitment and the Advances owing to it within the next succeeding 30 days (in the case of clause (i) or clause (ii)), or within the next succeeding 5 days (in the case of clauses (iii) and (iv)) . If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender's Commitment or Advances, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Bank") may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Advance, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms “Approved Fund” hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and “Ineligible Institution” have as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the following meanings:Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07(h), any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to the Granting Bank or to any financial institutions (consented to by the Borrower and Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section may not be amended without the written consent of the Granting Bank.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Peco Energy Co), 364 Day Credit Agreement (Peco Energy Co)
Assignments and Participations. (a) Each Lender maymay sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder (including all of its rights and obligations with respect to the Term Loans, the Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitments, such assignment (A) shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment and (B) shall be subject to the prior written consent of the BorrowerAdministrative Agent, each LC the Issuer and the Administrative Agent Swing Loan Lender (which consents consent, in each case, shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event (if less than the assigning Lender’s entire interest) be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 1,000,000 or an integral multiple of $1,000,000 in excess thereof (treating multiple, simultaneous assignments by or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one two or more Approved Funds which are Affiliates or share the same (or affiliated) manager or advisor as a single assignment for purposes of the parties to the Assignment and Assumption, and not by the Borrower this clause (except in the case of a demand under Section 8.07(ga)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement andexcept, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contraryeither case, (A) with the consent of the Borrower and the Administrative Agent or (B) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender and (iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to (A) the prior consent of the Administrative Agent (which consent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender unreasonably withheld or to another Lender or to an Approved Fund, and (Bdelayed) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:and
Appears in 2 contracts
Sources: Credit Agreement (Knology Inc), Credit Agreement (Knology Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gother than a Designated Bidder) shall to the extent required by such Section, may assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the A Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) and the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and, except in the case of an assignment to a Lender Affiliate, a processing and recordation fee of $3,500 3,000, and shall send to the Borrower an executed counterpart of such Assignment and Acceptance, and provided further, however, that (which shall be payable by one or more i) the sum of (x) the amount of the parties Commitment of the assigning Lender being assigned to the Assignment and Assumptionassignee pursuant to each such assignment (determined as of the date of the Assignment) plus (y) the amount of the "Commitment" of the assigning Lender under the Long-Term Revolving Credit Agreement and/or the Canadian Credit Agreement contemporaneously assigned by such assigning Lender to such assignee as contemplated by clause (iii) of this sentence must be equal to or greater than $25,000,000, and not by or if less, the entire amount of such assigning Lender's "Commitment" (unless the Borrower and the Administrative Agent shall otherwise consent, which consent may be withheld for any reason) and must be an integral multiple of $1,000,000, (ii) any assignment to a Lender Affiliate will not relieve the assigning Lender of its obligation to make Advances hereunder timely in accordance with the terms hereof in the event such Lender Affiliate shall fail to do so and (iii) except in the case of an assignment to a demand under Lender Affiliate or as required by the Borrower pursuant Section 8.07(g))2.21(d) or 2.22, each such assignment shall be of a constant, and not a varying, percentage of all such Lender's rights and obligations under this Agreement (other than any right to make B Advances, any B Advances or any Notes) and the same constant percentage of all such Lender's rights and obligations, if any, under the Long-Term Revolving Credit Agreement and the Canadian Credit Agreement unless the Long-Term Revolving Credit Agreement or the Canadian Agreement, as the case may be, has been terminated, shall not be payable if contemporaneously assigned by such assigning Lender to the same assignee is a Federal Reserve Bank), (vpursuant to Section 8.07(a) the consent of the Borrower shall not be required after Long-Term Revolving Credit Agreement and Section 9.07(a) of the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofCanadian Credit Agreement. Upon such the execution, delivery, acceptance and recordingrecording of each Assignment and Acceptance by the parties thereto, from and after the effective date specified in each such Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) except as otherwise provided in clause (ii) above, the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, except in the circumstances contemplated by clause (ii) above, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an hereto, provided, however, that such assigning Lender shall continue retain any claim with respect to be entitled any fee, interest, cost, expense or indemnity which accrues, or relates to indemnification an event that occurs, prior to the date of such assignment pursuant to Section 8.04(c2.03, 2.06, 2.07, 2.11, 2.12, 2.15 or 8.04)). Notwithstanding anything contained .
(b) By executing and delivering an Assignment and Acceptance, each 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 Section 8.07(aAgreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the contraryfinancial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 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; (Aiv) such assignee will, independently and without reliance upon the consent of Administrative 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 (subject to approval in writing by the Borrower and the Administrative Agent to the extent required) an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers 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.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance, each Designation Agreement, each New Lender Agreement and each Commitment Increase Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and, with respect to Lenders other than Designated Bidders, the Commitment of, and principal amount of the A Advances 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 Borrower, the Administrative 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit D hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice and its receipt of an executed counterpart of such Assignment and Acceptance, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for any surrendered Note or Notes a new Note to the order of such Eligible Assignee and, if the assigning Lender has retained a Commitment hereunder, a new Note to the order of the assigning Lender. Any such new Note or Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
(e) Each Lender (other than a Designated Bidder) may designate one or more banks or other entities to have a right to make B Advances as a Lender pursuant to Section 2.19; provided that (i) such Lender shall have obtained the written consent of the Administrative Agent and the Borrower, such consent not to be required unreasonably withheld, (ii) no such Lender shall be entitled to make more than two such designations, (iii) each such Lender making one or more of such designations shall retain the right to make B Advances as a Lender pursuant to Section 2.19, (iv) each such designation shall be to a Designated Bidder and (v) the parties to each such designation shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, a Designation Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Designation Agreement, the designee thereunder shall be a party hereto with a right to make B Advances as a Lender pursuant to Section 2.19 and the obligations related thereto.
(f) By executing and delivering a Designation Agreement, the Lender making the designation thereunder and its designee thereunder confirm and agree with each other and the other parties hereto as follows: (i) such Lender makes no representation or warranty and assumes no responsibility with respect to any assignment by statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any Lender to an Affiliate of other instrument or document furnished pursuant hereto, (ii) such Lender makes no representation or warranty and assumes no responsibility with respect to another the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such designee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into the Designation Agreement; (iv) such designee will, independently and without reliance upon the Administrative Agent, such designating Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to an Approved Fundmake its own credit decisions in taking or not taking action under this Agreement; (v) such designee confirms that it is a Designated Bidder; (vi) such designee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto, and (vii) such designee 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.
(g) Upon its receipt of a Designation Agreement executed by a designating Lender and a designee representing that it is a Designated Bidder, the Administrative Agent shall, if such Designation Agreement has been completed and is substantially in the form of Exhibit J hereto, (i) accept such Designation Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(h) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, and the Advances owing to it and the Note or Notes held by it); provided, however, that (i) such Lender's obligations under this Agreement (including its Commitment to the Borrower hereunder) 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 Borrower, the Administrative 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) such Lender shall continue to be able to agree to any modification or amendment of this Agreement or any waiver hereunder without the consent, approval or vote of any such participant or group of participants, other than modifications, amendments and waivers which (A) postpone any date fixed for any payment of, or reduce any payment of, principal of or interest on such Lender's Advances or any facility fees or utilization fees payable under this Agreement, or (B) increase the amount of such Lender's Commitment in a manner which would have the effect of increasing the amount of a participant's participation, or (C) reduce the interest rate payable under this Agreement and such Lender's Advances, or (D) consent to the assignment or the transfer by the Borrower of any of its rights and obligations under the Agreement, and (vi) except as contemplated by the immediately preceding clause (v), no participant shall be deemed to be or to have any of the rights or obligations of a "Lender" hereunder.
(i) Any Lender may, in connection with any assignment, designation or participation or proposed assignment, designation or participation pursuant to this Section 8.07, disclose to the assignee, designee or participant or proposed assignee, designee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee, designee or participant or proposed assignee, designee or participant shall agree in writing for the benefit of the Borrower to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender in a manner consistent with Section 8.08.
(j) Anything in this Agreement to the contrary notwithstanding, any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including the Advances owing to a it) and the Notes, if any, issued to it hereunder in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System (or any successor regulation) and the applicable operating circular of such Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:.
Appears in 2 contracts
Sources: Short Term Revolving Credit Agreement (Burlington Resources Inc), Short Term Revolving Credit Agreement (Burlington Resources Inc)
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrowerso long as no Default shall have occurred and be continuing, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.10 or 2.12) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAdministrative Agent will, assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment shall be of a constant, and not a varying, percentage of all of the assigning a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments and Advances being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 1,000,000 (or, if lessin each case, such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 Borrower) under each Facility for which a Commitment or such Lender’s entire CommitmentAdvance is being assigned, (iiiii) each such assignment shall be to an Eligible Assignee, Assignee and (iviii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and (except in the case of an assignment to a Person that, immediately prior to such assignment, was an Affiliate or an Approved Fund of the assigning Lender) a processing and recordation fee of $3,500 3,500.
(which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (vb) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AssumptionAcceptance, (xi) 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 AssumptionAcceptance, have the rights and obligations of a Lender or the Issuing Bank, as the case may be, hereunder and (yii) the Lender or the Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or of the remaining portion of an assigning Lender’s or the Issuing Bank’s rights and obligations under this Agreement, such Lender or the Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower Party makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any 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, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan 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 Section 4.01 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 any Agent, such assigning Lender Party or any other Lender Party 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 each 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 such Agent by the terms hereof and thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender or the Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Lender Parties and the Commitment under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party 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 Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment 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 form of Exhibit ▇-▇, ▇-▇ or A-3 hereto, as the case may be.
(f) The Issuing Bank may assign to an Affiliate Eligible Assignee all or a portion of such Lender or to another Lender or to an Approved Fund, its rights and (B) any Lender may obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, without however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the consent of the Borrower, any LC Issuer or parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and without any requirement to have recording in the Register, an Assignment and Assumption executedAcceptance, assign together with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such Lender Party’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party 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.
(h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any part portion of its rights under this Agreement and the other Loan Documents (including, without limitation, the Advances owing to a it and the Note or Notes held by it) in favor of any Federal Reserve BankBank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(j) Notwithstanding anything to the contrary contained herein, provided any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such assignment pledge shall release the transferor pledging Lender from any of its obligations hereunder. For under the purposes Loan Documents and (ii) such trustee shall not be entitled to exercise any of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the following meanings:pledged interest through foreclosure or otherwise.
Appears in 2 contracts
Sources: Credit Agreement (Esterline Technologies Corp), Credit Agreement (Esterline Technologies Corp)
Assignments and Participations. (a) Each Lender may, with the prior written consent (unless such assignment is to an Affiliate of such Lender, in which case no such consent, and only notice to the Borrower, shall be required) of the Administrative Agent, the Borrower (unless a Default shall have occurred and be continuing) and each LC Issuer and the Administrative Agent Issuing Bank (which consents shall not be unreasonably withheld or delayedwithheld), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (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 Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 10,000,000 or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with a processing and recordation fee of $3,500 (which shall to be payable by one or more of the parties to the Assignment and Assumption, and not paid by the Borrower (except assigning Lender or, in the case of a demand under an assignment pursuant to Section 8.07(g)8.07(i), and shall not be payable if the assignee is a Federal Reserve BankBorrower), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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).
(b) 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: (although 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 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 Administrative 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, accept such Assignment and Acceptance, record the information contained therein in the Register and forward a copy thereof to the Borrower.
(d) The Administrative Agent shall continue maintain at its address referred to be entitled in Section 8.02 a copy of each Assignment and Acceptance delivered to indemnification pursuant and accepted by it and a register for the recordation of the names and addresses of the Lenders and, the Commitment of, and principal amount of the Advances owing to, each Lender from time to Section 8.04(c)time (the “Register”). Notwithstanding anything contained The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Section 8.07(aAgreement. The Register shall be available for inspection by the Borrower, the Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon written notice to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect Agent, each Lender may sell participations to one or more banks or other entities (other than the Borrower or any assignment by any Lender to an Affiliate of such Lender its Affiliates) in or to another Lender all or to an Approved Funda portion of its rights and/or obligations under this Agreement (including, without limitation, all or a portion of its Commitment and (Bthe Advances) any Lender may at any time, without the consent of the Borrower, the Administrative Agent or any LC Issuer Lender; provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative 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 and (iv) no Lender shall be entitled to receive any greater amount pursuant to Section 2.14 or 2.17 than such Lender would have been entitled to receive had such Lender not sold such participation. No Lender may grant to any holder of a participation in the rights and obligations of such Lender hereunder the right to require such Lender to take or omit to take any action under this Agreement, except that such Lender may grant to any such holder the right to require such holder’s consent to (i) reduce the principal of or interest on the outstanding Borrowings or the fees or other amounts payable to such Lender hereunder, (ii) postpone any date fixed for any payment of principal of or interest on the outstanding Borrowings or the fees payable to such Lender hereunder or (iii) permit the Borrower to assign any of its obligations under this Agreement to any other Person. Each holder of a participation in any rights and obligations under this Agreement, if and to the extent the applicable participation agreement so provides, shall, with respect to such participation, be entitled to all of the rights of a Lender as fully as though it were a Lender under Sections 2.10(c), 2.14, 2.17 8.01, 8.04(b) and 8.04(c) (subject to any conditions imposed on each Lender hereunder with respect thereto, including delivery of the forms and certificates required under Section 2.17(e)); provided, however, that no holder of a participation shall be entitled to any amounts that would otherwise be payable to it with respect to its participation under Section 2.14(a) or 2.17 unless (x) such amounts are payable in respect of a Regulatory Change enacted after the date the applicable participation agreement was executed or (y) such amounts would have been payable to the Lender that granted such participation if such participation had not been granted. Each Lender selling or granting a participation shall indemnify the Borrower and the Administrative Agent for any liabilities for Taxes that the Borrower or the Administrative Agent, as the case may be, might incur as a result of such Lender’s failure to withhold and pay any Taxes applicable to payments by such Lender to its participant in respect of such participation.
(f) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”) of such Granting Lender identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any such SPV to make any Advance, (ii) if such SPV elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof and (iii) no SPV or Granting Lender shall be entitled to receive any greater amount pursuant to Section 2.10(c), 2.14 or 2.17 than the Granting Lender would have been entitled to receive had the Granting Lender not otherwise granted such SPV the option to provide any Advance to the Borrower. The making of an Advance by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by such Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would otherwise be liable so long as, and to the extent that, the related Granting Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against or join any other Person in instituting against such SPV any bankruptcy, reorganization, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. Notwithstanding the foregoing, the Granting Lender unconditionally agrees to indemnify the Borrower, the Administrative Agent and each Lender against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be incurred by or asserted against the Borrower, the Administrative Agent or such Lender, as the case may be, in any way relating to or arising as a consequence of any such forbearance or delay in the initiation of any such proceeding against its SPV. Each party hereto hereby acknowledges and agrees that no SPV shall have the rights of a Lender hereunder, such rights being retained by the applicable Granting Lender. Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPV shall have any requirement voting rights hereunder and that the voting rights attributable to any Advance made by an SPV shall be exercised only by the relevant Granting Lender and that each Granting Lender shall serve as the administrative agent and attorney-in-fact for its SPV and shall on behalf of its SPV receive any and all payments made for the benefit of such SPV and take all actions hereunder to the extent, if any, such SPV shall have an Assignment and Assumption executedany rights hereunder. In addition, notwithstanding anything to the contrary contained in this Agreement any SPV may (i) with notice to, but without the prior written consent of any other party hereto, assign all or a portion of its interest in any Advances to the Granting Lender and (ii) in accordance with Section 8.08, disclose on a confidential basis any Confidential Information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPV. This Section may not be amended without the prior written consent of each Granting Lender, all or any part of whose Advance is being funded by an SPV at the time of such amendment.
(g) Any Lender may, in connection with any assignment, designation, participation or grant to an SPV or proposed assignment, designation, participation or grant to an SPV pursuant to this Section 8.07, disclose to the assignee, designee or participant or proposed assignee, designee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee, designee or participant or proposed assignee, designee or participant shall agree to preserve the confidentiality of any Confidential Information relating to the Borrower 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 to a in favor of any Federal Reserve BankBank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(i) In the event that any Lender, or any participant of such Lender pursuant to Section 8.07(e), shall have delivered a notice or certificate pursuant to Section 2.15, or the Borrower shall be required to make additional payments to any Lender under Section 2.10(c), 2.14 or 2.17, or any Lender shall be a Declining Lender, the Borrower shall have the right, at its own expense, upon notice to such Lender, to require such Lender to transfer and assign without recourse (in accordance with and subject to the restrictions contained in this Section 8.07) all such Lender’s interests, rights and obligations under this Agreement to another Eligible Assignee identified by the Borrower and approved by the Administrative Agent and each LC Issuing Bank (which approval shall not be unreasonably withheld), which financial institution shall assume such obligations of such Lender for consideration equal to the outstanding principal amount of such Lender’s Advances, and if satisfactory arrangements are made for the payment to such Lender of interest and fees accrued hereunder to the date of such transfer and all other amounts payable hereunder to such Lender on or prior to the date of such transfer; provided that (i) no Default shall have occurred and be continuing, (ii) no such assignment shall release conflict with any law, rule or regulation or order of any governmental authority and (iii) the transferor Borrower shall have paid to the assignor in immediately available funds on or prior to the date of such assignment all amounts accrued for the account of such Lender from any of its obligations hereunder. For the purposes of this or owed to it under Section 8.07(a2.10(c), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:2.14 or 2.17.
Appears in 2 contracts
Sources: Credit Agreement (American Electric Power Co Inc), Credit Agreement (American Electric Power Co Inc)
Assignments and Participations. (a) Each This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender mayand their respective successors and assigns; provided, with however, that none of the Loan Parties may assign or transfer any of its rights hereunder without the prior written consent of each Lender and any such assignment without the Borrower, each LC Issuer Lenders' prior written consent shall be null and the Administrative Agent void.
(which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gb) shall to the extent required by such Section, Each Lender may assign to one or more banks other lenders or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitments and the Advances owing to it and its participation in Facility LCsLoans made by it); provided provided, however, that (i) each such assignment shall be of is in an amount which is at least $3,000,000 or a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s entire 's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (x) an Affiliate of such Lender or a Related Fund of such Lender or (y) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $3,000,000 or a multiple of $1,000,000 in excess thereof), (iii) each such assignment shall be to an Eligible Assignee, (ivii) the parties to each such assignment shall execute and deliver to the Administrative Collateral Agent, for its acceptance and recording in the Registeracceptance, an Assignment and AssumptionAcceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower 3,000 (except in the case payment of a demand under Section 8.07(g)), and such fee shall not be payable if the assignee is required in connection with an assignment by a Federal Reserve BankLender to an Affiliate of such Lender or Related Fund of such Lender), (viii) except as provided in Section 11.07(b), (iv), any such assignment shall be made with the written consent of, and prior notice to, (x) the Collateral Agent, and (y) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower, which consent of the Collateral Agent and the Borrower shall not be required after the occurrence and during the continuance of any Event of Defaultunreasonably withheld, and (viv) no written consent of or prior notice to the Collateral Agent or the Borrower shall be deemed required in connection with any assignment by a Lender to have consented to any an Affiliate of such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofLender or a Related Fund of such Lender. Upon such execution, delivery, acceptance delivery and recordingacceptance, from and after the effective date specified in each Assignment and AssumptionAcceptance, which effective date shall be at least three Business Days after the delivery thereof to the Collateral Agent (or such shorter period as shall be agreed to by the Collateral Agent and the parties to such assignment), (xA) the assignee thereunder shall be become a party hereto "Lender" hereunder and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Assumption, have the rights and obligations of a Lender hereunder Acceptance and (yB) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)hereto). Notwithstanding anything contained to the contrary in this Section 8.07(a) 11.07(b), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or a Related Fund of such Lender without delivering an Assignment and Acceptance to the contraryCollateral Agent; provided, that (Ax) the consent of the Borrower and the Administrative Agents may continue to deal solely and directly with such assigning Lender in connection with the interest so assigned until such Lender and its assignee shall have executed and delivered an Assignment and Acceptance to the Collateral Agent for recordation and (y) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Collateral Agent or any other Person shall not be required affect the legality, validity or binding effect of such assignment. Unless the Borrower shall otherwise consent in writing, Silver Point and/or its Related Funds' Pro Rata Share (as defined in clause (c) of the definition of such term) shall equal or exceed 51% at all times.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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, the 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 this Agreement or any other Loan Document furnished pursuant hereto; (ii) the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement and the other Loan Documents, together with such other documents and information 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 assigning Lender, any Agent or any 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 and the other Loan Documents; (v) such assignee appoints and authorizes the Agents to take such action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (vi) 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 Loan Documents are required to be performed by it as a Lender.
(d) The Collateral Agent shall, on behalf of the Borrower, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Commitments of, and principal amount of the Loans (the "Registered Loans") owing to each Lender from time to time. Other than in connection with an assignment by any a Lender to an Affiliate of such Lender or a Related Fund of such Lender, the entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall 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 Borrower and any Lender at any reasonable time and from time to another time upon reasonable prior notice. In the case of any assignment by a Lender to an Affiliate of such Lender or to an Approved Funda Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender shall maintain a comparable register.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any promissory notes subject to such assignment, the Collateral Agent shall, if the Collateral Agent (and the Borrower, if applicable) consents to such assignment and if such Assignment and Acceptance has been completed (i) accept such Assignment and Acceptance and (ii) record the information contained therein in the Register.
(f) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary.
(g) In the event that any Lender sells participations in a Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(h) Any foreign Person who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.08(d).
(i) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents 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 and the other Loan Documents; and (iii) 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 maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 9.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.08 and Section 3.05 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.
(j) In the event (i) any Lender may at delivers to the Borrower any timenotice in accordance with Section 2.08(c), without 2.09(d), or 3.05(b), (ii) any Lender defaults in its obligations to fund a Revolving Loan pursuant to this Agreement, or (iii) any Lender (a "Non-Consenting Lender") refuses to consent to an amendment, modification or waiver of this Agreement that, pursuant to Section 11.02, requires the consent of all of the Borrower, any LC Issuer Lenders or all of the Administrative AgentLenders directly affected thereby, and which amendment, modification or waiver has been consented to by the Required Lenders, then, provided that no Default or Event of Default has occurred and is continuing at such time, the Borrower may, at its own expense (such expense to include any transfer fee payable to the Collateral Agent under Section 11.07(b)), require such Lender to transfer and assign in whole or in part, without any requirement recourse (in accordance with and subject to have an Assignment the terms and Assumption executedconditions of Section 11.07), assign all or any part of its interests, rights and obligations under this Agreement to a Federal Reserve Bankany assignee which shall assume such assigned obligations, provided that no (A) such assignee shall be acceptable to the Collateral Agent, (B) such assignment shall release not conflict with any law, rule or regulation or order of any court or other Governmental Authority, (C) the transferor Borrower or such assignee shall have paid to the assigning Lender from in immediately available funds the principal of and interest accrued to the date of such payment on the Loans made by it hereunder and all other amounts owed to it hereunder (including, without limitation, any amounts owing pursuant to Section 2.08(c), 2.09(d), or 3.05(b)) and (D) in the event such Lender is a Non-Consenting Lender, each assignee shall consent, at the time of such assignment, to each matter in respect of which such Lender was a Non-Consenting Lender and the Borrower also requires each other Lender that is a Non-Consenting Lender to assign its interests, rights and obligations hereunder. For the purposes of under this Section 8.07(a11.07(j), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:.
Appears in 2 contracts
Sources: Financing Agreement (Xanodyne Pharmaceuticals Inc), Financing Agreement (Xanodyne Pharmaceuticals Inc)
Assignments and Participations. (a) No Borrower may assign any of its rights or obligations hereunder or under the Notes without the prior consent of all of the Banks and the Administrative Agent.
(b) Each Lender mayBank may assign any of its Loans, its Notes, and its Commitment (but only with the prior written consent of the BorrowerAdministrative Agent, each LC Issuer and the Administrative Agent (which consents shall consent will not be unreasonably withheld or delayed)withheld, and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCseach Borrower); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be any assignments to an Eligible Assignee, such consent of each Borrower will not be unreasonably withheld; (ii) no such consent of each Borrower shall be required if an Event of Default under clause (a), (e) or (f) of Section 9 hereof has occurred and is continuing; (iii) unless each Borrower shall otherwise consent, any such partial assignment shall be in an amount at least equal to $5,000,000; and (iv) the parties to each such assignment by a Bank of its Loans, Notes or Commitment shall execute be made in such manner so that the same portion of its Loans, Notes and deliver Commitment is assigned to the respective assignee. Upon execution and delivery by the assignee to each Borrower and the Administrative 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 Loans specified in such instrument, and upon consent thereto by each Borrower and the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumptionextent required above, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) the assignee thereunder shall be a party hereto andhave, to the extent that of such assignment (unless otherwise provided in such assignment with the consent of each Borrower and the Administrative Agent), the obligations, 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Assumptionassignment, relinquish its rights and be released from the Commitment (or portion thereof) so assigned. Upon each such assignment (other than assignment pursuant to Section 2.04(c) or 2.11 hereof), the assigning Bank shall pay the Administrative Agent an assignment fee of $3,500.
(c) A Bank may sell or agree to sell to one or more other Persons a participation in all or any part of any Loans held by it, or in its obligations Commitment, in which event each purchaser of a participation (a “Participant”) shall not, except as otherwise provided in Section 4.07(c) hereof, have any other rights or benefits under this Agreement and, or any Note (the Participant’s rights against such Bank in respect of such participation to be those set forth in the case agreements executed by such Bank in favor of an Assignment the Participant). All amounts payable by the Company to any Bank under Section 5 hereof in respect of Loans held by it, and Assumption covering all its Commitment, shall be determined as if such Bank had not sold or agreed to sell any participations in such Loans and Commitment, and as if such Bank were funding each of such Loan and Commitment in the remaining same way that it is funding the portion of an assigning Lender’s rights such Loan and obligations under this Agreement, Commitment in which no participations have been sold. In no event shall a Bank that sells a participation agree with the Participant to take or refrain from taking any action hereunder except that such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to Bank may agree with the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any timeParticipant that it will not, without the consent of the BorrowerParticipant, agree to (i) increase or extend the term, or extend the time or waive any requirement for the reduction or termination, of such Bank’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the related Loan or Loans or any portion of any fee hereunder payable to the Participant, (iii) reduce the amount of any such payment of principal, (iv) reduce the rate at which interest is payable thereon, or any fee hereunder payable to the Participant, to a level below the rate at which the Participant is entitled to receive such interest or fee or (v) alter the terms of Section 9(g) hereof.
(d) In addition to the assignments and participations permitted under the foregoing provisions of this Section 11.06, any LC Issuer Bank may (without notice to or consent of the Company, the Administrative Agent, Agent or any other Bank and without payment of any requirement fee)
(i) assign and pledge all or any portion of its Loans and its Notes to have an Assignment any Federal Reserve Bank as collateral security pursuant to Regulation A and Assumption executed, any Operating Circular issued by such Federal Reserve Bank and (ii) assign all or any part portion of its rights under this Agreement and its Loans and its Notes to a Federal Reserve Bank, provided that no an affiliate. No such assignment shall release the transferor Lender assigning Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning any Borrower or any of its obligations hereunder. For Subsidiaries in the purposes possession of such Bank from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the provisions of Section 11.12(b) hereof.
(f) Anything in this Section 8.07(a)11.06 to the contrary notwithstanding, no Bank may assign or participate any interest in any Loan held by it hereunder to any Borrower or any of its affiliates or Subsidiaries without the terms “Approved Fund” and “Ineligible Institution” have the following meanings:prior consent of each Bank.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (American General Finance Inc), 364 Day Credit Agreement (American General Finance Corp)
Assignments and Participations. (a) Each Lender maymay sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder (including all of its rights and obligations with respect to the Term Loans, the Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitments, such assignment (A) shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment and (B) shall be subject to the prior written consent of the BorrowerAdministrative Agent, each LC the Issuer and the Administrative Agent Swing Loan Lender (which consents consent, in each case, shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event (if less than the assigning Lender’s entire interest) be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 1,000,000 or an integral multiple of $1,000,000 in excess thereof (treating multiple, simultaneous assignments by or to two or more Approved Funds which are Affiliates or share the same (or affiliated) manager or advisor as a single assignment for purposes of this clause (a)), except, in either case, (A) with the consent of the Borrower and the Administrative Agent or (B) if such Lender’s entire Commitment, assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender and (iii) each if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to an Eligible Assignee, (ivA) the prior consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) and (B) in the case of (1) an assignment with respect to the Revolving Credit Facility or (2) an assignment that causes any Person (other than Credit Suisse or an Affiliate of Credit Suisse), together with any Affiliates of such Person, to hold in excess of 35% of the principal amount of the Obligations, or such assignment is to a Person holding in excess of 35% of the principal amount of the Obligations, in each case, so long as no Default or Event of Default has occurred and is continuing, the prior consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned and which consent shall be deemed to be granted if no response is received from the Borrower within five (5) Business Days following a request for such consent). Any such assignment need not be ratable as among the Term Loan Facilities and the Revolving Credit Facility.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with and any administrative questionnaire, tax forms or other documents required by the Administrative Agent. Upon its receipt of an Assignment and Acceptance executed by the assigning Lender and the Eligible Assignee, the Lender or Eligible Assignee shall pay to the Administrative Agent a registration and processing and recordation fee of $3,500 for each assignment (which shall be payable unless otherwise agreed by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofin its sole discretion). Upon such execution, delivery, Subject to acceptance and recordingrecording thereof by the Administrative Agent in the Register and the receipt of the registration and processing fee referenced in this clause (b), from and after the effective date specified in each such Assignment and AssumptionAcceptance, (xi) the assignee Eligible Assignee thereunder shall be become a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it such assignee pursuant to such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, (yii) the Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notation in the Register and (iii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder under this Agreement have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (except for those surviving the payment in full of the Obligations) and be released from its obligations under this Agreement the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreementthe Loan Documents, such Lender shall cease to be a party hereto hereto).
(although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(ac) to the contrary, (A) the consent of the Borrower and the The Administrative Agent shall not be required with respect maintain at its address referred to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and in Section 11.8 (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:
Appears in 2 contracts
Sources: Credit Agreement (Knology Inc), Credit Agreement (Knology Inc)
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g2.22(b) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAgent, will assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it it, its interest in any outstanding Letters of Credit and its participation in Facility LCsSwing Line Advances and the Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (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 Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof unless the Borrower and the Agent otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) the Swing Line Commitment and all outstanding Swing Line Advances may only be assigned in their entirety to a Lender then having a Commitment, and (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with any Revolving Credit Note or Swing Line Note subject to such assignment and a processing and recordation fee of $3,500 (which payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), and shall not be payable if an assignment made at the assignee is a Federal Reserve Bank), (v) the consent request of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofan Eligible Assignee that is an existing Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights (other than its rights under Sections 2.12, 2.15 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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 hereto).
(although b) Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(c) The Agent shall maintain at its address referred to in Section 8.02 a copy of each Assumption Agreement and each Assignment and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances 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 Borrower, 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Each Lender may sell participations to one or more banks or other entities (other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and any Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder and its participation obligations to the Issuing Lenders and the Swing Line Lender hereunder) 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 Borrower, the Agent, the Issuing Lenders 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 and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Note, or any consent to any departure by the Borrower 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, or 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. The applicable Lender, acting solely for this purpose as an agent of the Borrower, shall maintain a register for the recordation of the names and addresses of each participant to which such Lender has sold a participating interest and the amount of each such participant’s interest in such Lender’s rights and/or obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be entitled conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of the related rights and/or obligations, subject to indemnification the provisions of this Section.
(e) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.04(c)). 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Borrower Information relating to the Borrower received by it from such Lender.
(f) Notwithstanding anything contained any other provision set forth in this Section 8.07(a) to the contraryAgreement, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Advances owing to a it and any Note or Notes held by it) in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Lender from any Board of its obligations hereunder. For Governors of the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Federal Reserve System.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Ugi Utilities Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each the LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 500,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 100,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and AssumptionAcceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultDefault under Section 6.01(a), Section 6.01(c)(i) (with respect to a breach of Section 5.02(c) only) or Section 6.01(e) and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower Borrower, the LC Issuer and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any the LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For .
(b) By executing and delivering an Assignment and Acceptance, the purposes 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Section 8.07(a), Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the terms “Approved Fund” and “Ineligible Institution” have financial condition of the following meanings:Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto;
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances Loans owing to it and its participation in Facility LCsthe Note or Notes held by it); provided that provided, however, that: -------- -------
(i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, Agreement (other than any Competitive Bid Loans or Competitive Bid Loan Notes),
(ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment other than an assignment to another Lender (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, in excess thereof,
(iii) each such assignment shall be to an Eligible Assignee, and (unless such assignment shall be to a Subsidiary of the assigning Lender or to a Subsidiary of the bank holding company of which the assigning Lender is a Subsidiary) the Borrower and the Administrative Agent shall have consented to such assignment (which consents shall not be unreasonably withheld or delayed),
(iv) after giving effect to such assignment, the assigning Lender (together with all Affiliates of such Lender) shall continue to hold no less than 25% (or, in the case of Citibank, 12.5%) of its original Commitment hereunder and of the Loans owing to it, unless the Borrower shall otherwise agree, and
(v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof2,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Credit Agreement ---------------- Lender assignor thereunder shallshall relinquish its rights and be released from its obligations under this Agreement, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance.
(b) By executing and delivering an Assignment and Acceptance, relinquish its rights the Lender assignor thereunder and be released 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 to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement andor any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.01 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 Administrative Agent, any Managing Agent or Documentation 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers 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.
(c) The Administrative Agent shall maintain at its address referred to in Section 9.02 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 Commitment of, and principal amount of the Revolving Loans owing to, each Lender from time to time (the "Register"). The entries in the case -------- Register shall be conclusive and binding for all purposes, Credit Agreement ---------------- absent manifest error, and the Borrower, the Administrative 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall provide the Borrower with a copy of the Register upon request.
(d) Upon its receipt of an Assignment and Assumption covering all Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Loan Note or Notes subject to such assignment, the remaining Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C-1 hereto, (1) accept such Assignment and Acceptance, (2) record the information contained therein in the Register and (3) give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Revolving Loan Note or Notes a new Revolving Loan Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and a new Revolving Loan Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Revolving Loan Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Loan Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A-l hereto. Such surrendered Revolving Note or Notes shall be marked "canceled" and shall be returned promptly to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities in or to a portion of an assigning its rights and obligations under this Agreement (including, without limitation, a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) such Lender’s 's -------- ------- obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) 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 Borrower, the Administrative 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) the parties to each such participation shall execute a participation Credit Agreement ---------------- 77 agreement in substantially the form of the Participation Agreement, and (vi) no participant under any such participation shall have any right to approve any amendment to or waiver of any provision of any Loan Document, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or consent would alter the principal of, or interest on, the Loan or Loans in which such participant is participating or any fees or other amounts payable to the Lenders hereunder, or postpone any date fixed for any payment of principal of, or interest on, the Loans or any fees or other amounts payable hereunder. Each Lender shall provide the Borrower with a list of entities party to all Participation Agreements with such Lender shall cease to be a party hereto upon request.
(although an assigning f) Any Lender shall continue to be entitled to indemnification may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.04(c)). 9.07, disclose to the assignee or participant or proposed assignee or participant, any information, including Confidential Information, relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided -------- that, prior to any such disclosure of Confidential Information, the assignee or participant or proposed assignee or participant shall be informed of the confidential nature of such Confidential Information and shall agree to (i) preserve the confidentiality of any Confidential Information relating to the Borrower received by it from such Lender and (ii) be bound by the provisions of Section 9.10.
(g) Notwithstanding anything contained any other provision in this Section 8.07(a) 9.07, no Lender may assign its interest to the contraryan Eligible Assignee if, (A) the consent as of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate effective date of such Lender assignment, such assignment would increase the amount of taxes or to another Lender increased costs payable under Sections 2.10 or to an Approved Fund3.03, and respectively.
(Bh) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, time and without the consent of the Borrower, any LC Issuer Administrative Agent or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign Borrower create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Loans owing to a it and the Notes held by it) in favor of any Federal Reserve BankBank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(i) Notwithstanding Sections 9.07(a) and (e), Citibank may not assign, or sell participations in, all or any portion of its rights or obligations under this Agreement (including, without limitation, all or any portion of its Commitment, the Loans owing to it or the Note or Notes held by it) without the Borrower's prior consent until the date (the "Specified Date") that is the -------------- earlier of the date on which the initial Loan is made and June 30, 1997. Although Citibank may assign or sell participations in its rights and obligations hereunder (to the extent otherwise permitted hereunder) on and as of the Specified Date, Citibank's obligation hereunder to make the initial Loan in the full amount of the Commitments shall not in any way be affected by the occurrence (or failure to occur) of any such assignment or participation, provided that Citibank's obligation hereunder to fund the initial Loan as -------- aforesaid shall be reduced by the amount, if any, of Loans actually timely made by the other Lenders on the date of the initial Loan. This Section 9.07(i) shall be of no such assignment shall release force and effect at any time after the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Specified Date.
Appears in 2 contracts
Sources: Credit Agreement (Renaissance Hotel Group N V), Credit Agreement (Marriott International Inc)
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower (following a demand by the Lender pursuant to Section 8.07(g2.10(a) and 2.10(b)) upon at least 5 Business Days' notice to such Lender and the Administrative Agent, shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsNote or Notes held by it); provided that provided, however, (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) except in the case of assignments to affiliates or other Lenders, the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment1,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower shall be arranged by the Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof2,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, which effective date shall be at least 5 days after the execution and delivery thereof to the Administrative Agent, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining Credit Agreement portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(b) 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: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of any Loan Document or any other instrument or document furnished pursuant to any Loan Document; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 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 Administrative 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 any Loan Document; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under any Loan Document as are delegated to them by the terms hereof, together with such powers 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 any Loan Document are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Commitment of, and principal amount of the Advances 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 Borrower, the Administrative 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Credit Agreement
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder, a new Note to the order of the assigning Lender in an amount equal to the Commitment 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 form of Exhibit A hereto.
(e) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it); provided, however, (i) such Lender's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder and the Advances owing to it and the Note or Notes held by it) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative 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 and (iv) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to an Affiliate of this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower, its Subsidiaries or any Minority Owned Entity furnished to Credit Agreement such Lender by or on behalf of the Borrower; provided that, prior to another Lender any such disclosure, the assignee or participant or proposed assignee or participant shall agree to an Approved Fundpreserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Advances owing to a it and the Notes held by it) in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Lender from any Board of its obligations hereunder. For Governors of the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Federal Reserve System.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the prior written consent of Exelon, the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the a Borrower pursuant to Section 8.07(gsubsection (g) hereof shall to the extent required by such Sectionsubsection (g), assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and it, its participation in Facility LCsLCs and the Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender ▇▇▇▇▇▇ being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender▇▇▇▇▇▇’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 4,000 (which shall be payable by one or more of the parties to the Assignment and AssumptionAcceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))any Borrower, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower Exelon shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Acceptance,
Appears in 1 contract
Sources: 364 Day Credit Agreement
Assignments and Participations. (a) Each Lender Bank may, in accordance with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Sectionapplicable law, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement (including the Letter of Credit Liabilities held by the assigning Lender’s Bank pursuant to Section 2.18), (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (ii) the sum of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 (and shall be an integral multiple in increments of $1,000,000 or such Lender’s entire Commitmentin excess thereof), (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower Administrative Agent and, if no Event of Default exists, the Parent (such consent not to be unreasonably withheld) shall not be required after unless such assignment is to a Bank or an Affiliate of a Bank that is not a Defaulting Lender or Potential Defaulting Lender; provided however, that the occurrence and during the continuance of any Event of Default, and (vi) the Borrower Parent shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) 5 Business Days after having received written notice thereofthereof (which notice shall be delivered by hand, including any overnight courier service, by mail, or by facsimile), (v) the consent of each Issuing Bank shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding), (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for recording by the Administrative Agent in the Register, an Assignment and Acceptance, together with any Notes then held by such assigning Bank and any Notes then held by such assignee and a processing and recordation fee of $3,500 and (vii) no such assignment will be made to any Defaulting Lender or Potential Defaulting Lender or any of their respective subsidiaries, or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (vii). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and Bank hereunder, (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s Bank's rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto except that the rights under Sections 2.06, 2.10, 2.13 and 8.04 of such Bank shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a party hereto), and (although z) unless the Parent in its sole discretion otherwise consents, no such assignee shall be entitled to receive any greater payment pursuant to Sections 2.06, 2.10 and 2.13 than the assigning Bank would have been entitled to receive with respect to the rights assigned to such assignee, except as a result of circumstances arising after the date of such assignment. Any assignment or transfer by a Bank of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Bank of a participation in such rights and obligations in accordance with paragraph (e) of this Section.
(b) By executing and delivering an Assignment and Acceptance, the 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 Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or any other instrument or document furnished pursuant hereto or in connection herewith, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of any Loan Document or any other instrument or document furnished pursuant hereto or in connection herewith; (ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or any other Person or the performance or observance by any Borrower or any other Person of any of its respective obligations under any Loan Document or any other instrument or document furnished pursuant hereto or in connection herewith; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(d) 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 Administrative Agent, the Issuing Banks, such assigning Bank or any other 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, any of the other Loan Documents or any other instrument or document; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Administrative Agent by the terms hereof or thereof, together with such powers and discretion as are reasonably incidental thereto; and (ix) 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 Bank.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Banks and the Commitment of and the principal amount of the Advances owing to, each Bank 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 Administrative Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Bank and an assignee representing that it is an Eligible Assignee, together with any Notes then held by such assigning Bank and any Notes then held by such assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit E, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt written notice thereof (which notice shall be delivered by hand, including any overnight courier service, by mail, or by facsimile) to the Borrowers. Within five Business Days after its receipt of such notice, an authorized officer of each Borrower shall execute and deliver to the Administrative Agent (i) in exchange for any surrendered Notes a new Note payable to the order of such Eligible Assignee (if a new Note is requested by such Eligible Assignee) in an amount equal to its Commitment after giving effect to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note payable to the order of the assigning Bank (if an new Note is requested by the assigning Bank) in an amount equal to the Commitment retained by it hereunder (such new Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Notes, if any, shall be dated the effective date of such Assignment and Acceptance, shall be properly completed and shall otherwise be in substantially the form of Exhibit B).
(e) Each Bank, in accordance with applicable law, may sell participations to one or more banks or other entities (other than the Parent or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of any of its Commitments, the Advances owing to it and the Note held by it); provided that (i) such Bank's obligations under this Agreement (including its Commitments to the Borrowers hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of any such Notes for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent, the Issuing Banks and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, (v) the terms of any such participation shall not restrict such Bank's ability to make any amendment or waiver of this Agreement or any Note or such Bank's ability to consent to any departure by a Borrower therefrom without the approval of the participant, except that the approval of the participant may be required 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, or 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, and (vi) unless the Parent in its sole discretion otherwise consents, no such participant shall be entitled to indemnification receive any greater payment pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) Sections 2.06, 2.10 and 2.13 than such Bank would have been entitled to receive with respect to the contraryrights assigned to such participant by such Bank except as a result of circumstances arising after the date of such participation to the extent that such circumstances affect other Banks and participants generally, and (Avii) the consent each participant that is not a United States person (as such term is defined in Section 7701(a)(30) of the Borrower Code) shall provide to the Administrative Agent and the Parent a U.S. Internal Revenue Service Form W-8BEN or W-8ECI, as appropriate, or any successor form prescribed by the U.S. Internal Revenue Service, duly completed and certifying that such participant is fully exempt from United States withholding taxes with respect to all payments to be made to such participant under such participation agreement, or other documents satisfactory to the Parent and the Administrative Agent indicating that all payments to be made to such participant under such participation agreement are fully exempt from such withholding taxes, and neither the Borrowers nor the Administrative Agent shall not have any obligation to pay to any participant any taxes, penalties, interest or other expenses, costs and losses incurred or payable by the Borrowers or the Administrative Agent as a result of the failure of such participant to obtain such additional duly completed and signed copies of one or the other of such forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) as may be required under then-current United States law or regulations to avoid United States withholding taxes on payments in respect of all amounts to be received by such participant.
(f) Any Bank may, in connection with respect any assignment or participation or proposed assignment or participation pursuant to this Section 8.06, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers or any of their Affiliates furnished to such Bank by or on behalf of the Borrowers or any of their Affiliates; provided, that, prior to any assignment by such disclosure, the assignee or participant or proposed assignee or participant shall agree to comply with Section 8.09.
(g) Notwithstanding any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fundother provision set forth in this Agreement, and (B) any Lender Bank may at any time, without time (i) create a security interest in all or any portion of its rights under the consent Loan Documents (including the Advances owing to it and the Notes held by it) including in favor of any Federal Reserve Bank in accordance with Regulation A of the Borrower, any LC Issuer or Federal Reserve Board and (ii) upon notice to the Borrowers and the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part portion of its rights and obligations under the Loan Documents to any of its Affiliates.
(h) Nothing in this Agreement Agreement, expressed or implied, shall be construed to a Federal Reserve Bankconfer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, participants to the extent provided that in paragraph (e) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks and the Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder (including pursuant to Section 2.16), no such assignment shall release will be effective unless and until, in addition to the transferor other conditions thereto set forth herein, the parties to the assignment make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Parent and the Administrative Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender from to the Administrative Agent, the Issuing Banks, and each other Bank (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Advances and participations in Letters of Credit in accordance with its Ratable Portion. Notwithstanding the foregoing, in the event that any assignment of its rights and obligations hereunder. For of any Defaulting Lender hereunder becomes effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest will be deemed to be a Defaulting Lender for all purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Agreement until such compliance occurs.
Appears in 1 contract
Sources: Credit Agreement (Ensco PLC)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent Issuing Bank (which consents consent shall not be unreasonably withheld or delayed), and and, if demanded by the Borrower pursuant Company so long as no Default shall have occurred and be continuing and only with respect to Section 8.07(g) shall any Affected Lender, upon at least five Business Days’ notice to such Lender and the extent required by such SectionAgent, will assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it it, its participations in Letters of Credit, if any, and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement with respect to one or more Facilities, (ii) except in the case of the assigning an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of (iix) the Revolving Credit Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 in excess thereof and (y) the Unissued Letter of 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 or an integral multiple of $1,000,000 in excess thereof, of the assigning Lender being assigned pursuant to each such Lender’s entire Commitmentassignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof, in each case, unless the Company and the Agent otherwise agree (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Company pursuant to this Section 9.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Company pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 payable by the parties to each such assignment; provided, however, that (which x) only one such fee shall be payable in connection with simultaneous assignments to or by two or more Approved Funds with respect to a Lender and (y) in the case of each assignment made as a result of a demand by the Company, such recordation fee shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (Company except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), and shall not be payable if an assignment made at the assignee is a Federal Reserve Bank), (v) the consent request of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed Company to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofan Eligible Assignee that is an existing Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 2.11, 2.14 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations (other than its obligations under Section 9.05 to the extent any claim thereunder relates to an event arising prior to such assignment) under this Agreement (and, in the case of an Assignment and Assumption 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).
(b) 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: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with this Agreement 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 instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 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 Affiliate 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 this Agreement 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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 C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company.
(d) The Agent shall maintain at its address referred to in Section 9.02 a copy of copy of each Assumption Agreement and 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 Commitment of, and principal amount of the Advances 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 any Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other entities (other than the Company or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and any Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender or 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 another deal solely and directly with such Lender or to an Approved Fund, in connection with such Lender’s rights and obligations under this Agreement and (Bv) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, provided, however, that any agreement between a Lender and such participant may at any timeprovide that the Lender will not, without the consent of participant, agree to any such amendment, waiver or consent would reduce the Borrowerprincipal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any LC Issuer information relating to the Borrowers furnished to such Lender by or on behalf of the Administrative AgentBorrowers; provided that, and without prior to any requirement such disclosure, the assignee or participant or proposed assignee or participant shall agree to have an Assignment and Assumption executed, preserve the confidentiality of any Borrower Information relating to the Borrowers received by it from such Lender.
(g) Any Lender may at any time pledge or assign a security interest in all or any part portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, ; provided that no such pledge or assignment shall release the transferor such Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:hereunder or substitute any such pledge or assignee for such Lender as a party hereto.
Appears in 1 contract
Sources: Credit Agreement (Eastman Kodak Co)
Assignments and Participations. Subject expressly to subsection (g) below and the provisions of Sections 3.08, 3.11 and 3.17:
(a) Each Lender may, with The Borrower may not assign its rights or obligations hereunder or under the Tranche B Notes or any Tranche B Letters of Credit without the prior consent of all of the Lenders, the Agent and Halliburton.
(b) Any Lender may assign to one or more of its Affiliates or, upon the written consent of the Borrower, each LC Issuer Agent and the Administrative Agent Borrower (which consents shall consent will not be unreasonably withheld or delayedwithheld), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) assignees who are not Affiliates of such Lender, all or a portion of its rights and obligations under this Agreement pursuant to an Assignment Agreement substantially in the form of Exhibit F (including all or a portion of its Commitmentan "Assignment") provided, the Advances owing to it and its participation in Facility LCs); provided however, that (i) each any such assignment shall be in the amount of a constant, at least $5,000,000 or such lesser amount to which the Borrower has consented and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) assignee or assignor shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver pay to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with Agent a processing and recordation fee of $3,500 (which shall be payable by one or more 2,500 for each assignment. Any such assignment will become effective upon the execution and delivery to the Agent of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower Agent. Promptly after receipt of an executed Assignment, the Agent shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) send to the Borrower shall be deemed to have consented to any a copy of such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofexecuted Assignment. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate receipt of such Lender or to another Lender or to an Approved Fundexecuted Assignment, and (B) any Lender may at any time, without the consent of the Borrower, will, at its own expense, execute and deliver new Tranche B Notes to the assignor and/or assignee, as appropriate, in accordance with their respective interests as they appear. Upon the effectiveness of any LC Issuer or assignment pursuant to this Section 12.06(b), the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign assignee will become a "Lender," if not already a "Lender," for all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), Agreement and the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Tranche B
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, upon notice to the Borrowers and the Agent and with the prior written consent of the Borrowerconsent, each LC Issuer and the Administrative Agent (which consents shall not to be unreasonably withheld or delayed), of the Agent, and, unless an Event of Default has occurred and if demanded is continuing, the Borrowers (which consent shall be deemed given by the Borrower pursuant Borrowers if the Borrowers have not responded to Section 8.07(ga request for such consent within ten (10) shall to the extent required by such SectionBusiness Days), assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances Term LoanLoans and other amounts owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, however, that (i) reserved; (ii) reserved, (iii) each such assignment with respect to any Class of rights and obligations shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement with respect to such Class, (iv) except in the case of the assigning an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount amount of the Term Loan of the assigning Term Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if less, the entire outstanding amount of the Term Loan held by such Term Lender’s Commitment, ) unless the Borrowers and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentthe Agent otherwise agree, (iiiv) each such assignment shall be to an Eligible Assignee, (ivvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, and the parties to such assignment (other than the Borrowers and the Agent) shall deliver together with therewith any Note subject to such assignment and a processing and recordation fee of $3,500 (which except no such fee shall be payable by one or more of the parties for assignments to the Assignment and Assumptiona Lender, and not by the Borrower (except in the case an Affiliate of a demand under Section 8.07(g)Lender or an Approved Fund), and shall not be payable if (vii) any Lender may, without the assignee is a Federal Reserve Bank), (v) the consent approval of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultBorrowers, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written but with notice to the Administrative Agent within five (5) Business Days after having received notice thereofBorrowers, assign all or a portion of its rights and obligations to any of its Affiliates or to another Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Section 2.12, 2.15 and 9.04 to the extent any claim thereunder relates to an event arising prior such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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 hereto).
(although an assigning b) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained effective unless and until, in this Section 8.07(a) addition to the contraryother conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (A) which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower Agent, the applicable pro rata share of TermPro Rata Share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent or any Lender hereunder (and interest accrued thereon). Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the Administrative Agent shall not be required 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 assignment statements, warranties or representations made in or in connection with this Agreement or the other Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents 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 Loan Parties or the performance or observance by the Borrowers of any of their obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.01 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 and the other Loan 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 and discretion under this Agreement and the other Loan Documents as are delegated to the Agent by the terms hereof and thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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 B 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.
(e) The Agent shall maintain at its address referred to in Section 9.02 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 principal amount of the Term LoanLoans owing to each Term 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 to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any timereasonable time and from time to time upon reasonable prior notice.
(f) Each Lender may, without the consent of the BorrowerAgent or any Loan Party, sell participations to one or more banks or other entities (other than the Borrowers or any of their Affiliates that is not a Permitted Holder) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of the Term LoanLoans owing to it and any Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement 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 and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Loan Document, or consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would require the affirmative vote of the Lender from which it purchased its participation pursuant to Section 9.01(a).
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any LC Issuer information relating to Holdings, the Borrowers or their Subsidiaries furnished to such Lender by or on behalf of the Administrative AgentBorrowers; provided that, and without prior to any requirement such disclosure, the assignee or participant or proposed assignee or participant shall agree to have an Assignment and Assumption executedpreserve the confidentiality of any Borrower Information relating to Holdings, assign the Borrowers or their Subsidiaries received by it from such Lender in accordance with Section 9.08.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any part portion of its rights under this Agreement (including the portion of the Termany Loan owing to a it and any Notes held by it), including, without limitation, in favor of any Federal Reserve BankBank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(i) The Borrowers, provided that no such assignment upon receipt of written notice from the relevant Lender, agree to issue Notes to any Term Lender to facilitate transactions of the type described in paragraph (g) above.
(j) Neither Holdings nor any Borrower shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:right to assign its rights hereunder or any interest herein without the prior written consent of each of the Lenders (except, in the case of SRAC, pursuant to Section 6.01(d)).
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Issuer, the Swingline Lenders and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) or (h) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 10,000,000 (unless each of the Borrower and the Administrative Agent otherwise consent) or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultDefault under Section 6.01(a), Section 6.01(c)(i) (with respect to a breach of Section 5.02(c) only) or Section 6.01(e) and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, Fund and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer Issuer, any Swingline Lender or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve BankBank or other central banking authority, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:
Appears in 1 contract
Assignments and Participations. (a) Each Lender Bank may, in accordance with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Sectionapplicable law, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement (including the Letter of Credit Liabilities held by the assigning Lender’s Bank pursuant to Section 2.18), (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (ii) the sum of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 (and shall be an integral multiple in increments of $1,000,000 or such Lender’s entire Commitmentin excess thereof), (iii) each such assignment shall be to an Eligible Assignee, (iv) the Administrative Agent and, if no Event of Default exists, the Parent consents to such assignment (which consent shall not be unreasonably withheld), and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording by the Administrative Agent in the Register, an Assignment and AssumptionAcceptance, together with any Notes then held by such assigning Bank and any Notes then held by such assignee and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and Bank hereunder, (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s Bank's rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto (although an assigning Lender except that the rights under Sections 2.06, 2.10, 2.13 and 8.04 of such Bank shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a party hereto), and (z) unless the Parent in its sole discretion otherwise consents, no such assignee shall be entitled to indemnification receive any greater payment pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) Sections 2.06, 2.10 and 2.13 than the assigning Bank would have been entitled to receive with respect to the contraryrights assigned to such assignee, except as a result of circumstances arising after the date of such assignment. -61-
(Ab) By executing and delivering an Assignment and Acceptance, the consent of the Borrower Bank assignor thereunder and the Administrative Agent shall not be required 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 Bank makes no representation or warranty and assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with any Loan Document or any other instrument or document furnished pursuant hereto or in connection herewith, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of any Loan Document or any other instrument or document furnished pursuant hereto or in connection herewith; (ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or any other Person or the performance or observance by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all Borrower or any part other Person of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its respective obligations hereunder. For the purposes under any Loan Document or any other instrument or document furnished pursuant hereto or in connection herewith; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 8.07(a), the terms “Approved Fund” 4.01(d) and “Ineligible Institution” have the following meanings: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;
Appears in 1 contract
Sources: Credit Agreement (Ensco PLC)
Assignments and Participations. (a) Each Lender may, (x) may with the prior written consent of (1) the BorrowerAgent, (2) each LC Issuer Issuing Bank (in the case of an assignment of Revolving Credit Commitment) and, (3) so long as no Event of Default has occurred and is continuing, the Administrative Agent Borrower (which consents shall not be unreasonably withheld or delayeddelayed and provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Agent within ten Business Days after having received notice thereof), and (y) will, if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.11, 2.14 or 2.20 or if such Lender is affected by an event described in Section 2.12 or is a Defaulting Lender) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAgent, assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Revolving Credit Commitment, the Loans and Advances owing to it it, its participations in Letters of Credit and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of its rights and obligations under the assigning relevant facility under this Agreement, (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, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than (x) in the case of an assignment of Revolving Credit Commitment, $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 or such Lender’s entire in excess thereof, and (y) in the case of an assignment of Term Loan Commitment, $1,000,000, in each case unless the Agent and, if no Default has occurred and is continuing, the Borrower otherwise agree, (iii) each such assignment shall be to an Eligible AssigneeAssignee and shall comply with Section 8.07(h), (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Loans owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 (which payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), and shall not be payable if an assignment made at the assignee request of the Borrower to an Eligible Assignee that is a Federal Reserve Bank)an existing Lender, (vvii) the no consent of the Borrower Borrower, the Agent or any Issuing Bank shall be required in the case of an assignment to any Affiliate of the assigning Lender or in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender and (viii) the Agent shall not be required after have any responsibility or liability for monitoring or enforcing any of the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed provisions set forth herein with respect to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofCompetitors. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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).
(b) 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: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with any 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, any Loan Document or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 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 the Loan Documents; (v) such assignee confirms that it is an Affiliate 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 any Loan Document as are delegated to the Agent by the terms hereof or thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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 C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in Section 8.02 a copy of each Assumption Agreement and 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 Commitment of, and principal amount of the Loans and Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be prima facie evidence of the correctness thereof and binding for all purposes, absent manifest error, and the Borrower, 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Subject to Section 8.07(h), each Lender may sell participations to one or more banks or other entities (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, its participation in Letters of Credit, the Loans owing to it and any Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender or shall remain the holder of any such Note for all purposes of this Agreement, (iv) each Loan Party, the Agent and the other Lenders shall continue to another deal solely and directly with such Lender or to an Approved Fund, in connection with such Lender’s rights and obligations under this Agreement and (Bv) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any other Loan Document, or any consent to any departure by any Loan Party 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, or 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.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Loan Parties furnished to such Lender by or on behalf of the Loan Parties; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Borrower Information relating to the Loan Parties received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Loans owing to a it and any Note or Notes held by it) in favor of any Federal Reserve BankBank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(h) Notwithstanding the foregoing provisions of this Section 8.07 or any other provision of this Agreement, provided that (i) no such assignment Lender shall release the transferor Lender from assign or sell a participation in any of its rights or obligations hereunder. For hereunder unless the purposes proposed assignee or participant represents and warrants in the applicable Assignment and Assumption or participation agreement that such Person is not a Competitor; and (ii) if any representation and warranty described in the foregoing clause (i) shall prove to have been incorrect in any material respect when made, then the applicable assignee or participant (A) shall have no right to receive any information under this Agreement, except for information with respect to administrative matters (such as principal balances, borrowing requests, interest payments and loan repayments) and matters on which such assignee or participant is entitled to vote pursuant to clause (C) below; (B) shall have no rights under Section 5.01(e); and (C) in the case of this an assignee, shall have no voting rights hereunder other than with respect to matters on which a Defaulting Lender would be entitled to vote as set forth in the last sentence of Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:8.01.
Appears in 1 contract
Assignments and Participations. (a) The Loan Documents shall be binding upon and inure to the benefit of the Borrower, the Lenders, the Issuing Bank, the Administrative Agent, all future holders of the Notes and the Reimbursement Obligations, and their respective successors and assigns, except that the Borrower may not assign, delegate or transfer any of its rights or obligations under the Loan Documents without the prior written consent of the Administrative Agent, the Issuing Bank and each Lender.
(b) Each Lender mayshall have the right at any time, upon written notice to the Administrative Agent of its intent to do so, to sell, assign, transfer or negotiate all or any part of its rights and obligations under the Loan Documents to one or more of its affiliates, to one or more of the other Lenders (or to affiliates of such other Lenders) or, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent and the Issuing Bank (which consents shall not be unreasonably withheld or delayedand, in the case of the Borrower, shall not be required upon the occurrence and during the continuance of an Event of De fault), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Sectionsell, assign to one assign, transfer or more banks or other entities (other than an Ineligible Institution) negotiate all or a portion any part of its rights and obligations under this Agreement (including all or a portion of its Commitmentthe Loan Documents to any Eligible Assignee, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment sale, assignment, transfer or negotiation (other than sales, assignments, transfers or negotiations (x) to its affiliates or (y) its entire interest) shall be in a minimum amount of a constant, $5,000,000 and not a varying, percentage whole multiples of all of the assigning Lender’s rights $1,000,000 in excess thereof and obligations under this Agreement, (ii) in the Commitment Amount case of each Lender other than BNY, it shall pay a fee to the assigning Lender being assigned pursuant to each such assignment (determined as of Administrative Agent in the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment$3,500. For each assignment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its Agent acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofAcceptance Agreement. Upon such execution, delivery, acceptance and recordingthe recording thereof by the Administrative Agent, from and after the effective date specified in each such Assignment and AssumptionAcceptance Agreement, (x) 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 AssumptionAcceptance Agree ment, have the rights and obligations of a assignor Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and shall be released from its obligations under this Agreement and, in the case Loan Documents. The Borrower agrees upon written request of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect and at the Borrower's expense to any assignment by any Lender execute and deliver to an Affiliate such as signee, Notes, dated the effective date of such Lender Assignment and Acceptance Agreement. Upon any such sale, assignment or to another Lender or to an Approved Fundother transfer, the Commitment Amounts set forth in Exhibit A shall be adjusted accordingly by the Administrative Agent and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or a new Exhibit A shall be dis tributed by the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign .
(c) Each Lender may grant participations in all or any part of its rights under the Loan Documents to one or more Eligible Assignees, provided that (i) its obligations under the Loan Documents shall remain un changed, (ii) it shall remain solely responsible to the other parties to the Loan Documents for the performance of such obligations, (iii) the Borrower, the Issuing Bank, the Administrative Agent and the Lenders, as applicable, shall continue to deal solely and directly with it in connection with its rights and obligations under the Loan Documents, (iv) no sub-participations shall be permitted and (v) the voting rights of any holder of any participation shall be limited to the matters described in Section 11.1(a). The Borrower acknowledges and agrees that any such participant shall for purposes of Sections 3.5, 3.6, 3.7, 3.8, 3.9, 3.10 and 3.11, be deemed to be a "Lender"; provided, how ever, the Borrower shall not, at any time, be obligated to pay any participant in any interest of the Issuing Bank or any Lender hereunder any sum in excess of the sum which the Borrower would have been obligated to pay to the Issuing Bank or such Lender, as the case may be, in respect of such interest had the Issuing Bank or such Lender, as the case may be, not sold such participation.
(d) If any (i) assignment is made pursuant to subsection (b) above or (ii) any participation is granted pursuant to subsection (c) above, to any Person that is not a U.S. Person, such Person shall furnish such certificates, documents or other evidence to the Borrower and the Administrative Agent in the case of clause (i), and to the Borrower and the Issuing Bank or the Lender which sold such participation, as the case may be, in the case of clause (ii), as shall be required by Section 3.10(e).
(e) No Lender shall, as between and among the Borrower, the Issuing Bank, the Administrative Agent and such Lender, as the case may be, be relieved of any of its obligations under the Loan Documents as a result of any sale, assignment, transfer or negotiation of, or granting of participations in, all or any part of its rights and obligations under the Loan Documents, except that it shall be relieved of its obligations to the extent of any such sale, assignment, transfer, or negotiation of all or any part of its rights and obligations under the Loan Documents pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary con tained in this Agreement Section, the Issuing Bank or any Lender may at any time or from time to time pledge or assign all or any portion of its rights under the Loan Documents to a Federal Reserve Bank, provided that no any such assignment shall not release the transferor Lender such assignor from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:thereunder.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, may with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent Issuing Bank (which consents consent shall not be unreasonably withheld or delayed)) and, and if demanded by the Borrower (so long as no Default shall have occurred and be continuing and following a demand by the Borrower pursuant to Section 8.07(g2.18) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAgent, will assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Revolving Credit Commitment, its Unissued Letter of Credit Commitment, the Advances owing to it it, its participations in Letters of Credit and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (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 (x) the Revolving Credit Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) the Unissued Letter of 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 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof, in each case, unless the Borrower and the Agent otherwise agree (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of an election by the Borrower pursuant to Section 2.18 shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of an election by the Borrower pursuant to Section 2.18 unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) unless otherwise agreed by the Borrower, no Lender assignee shall have any claim under Section 2.11 on the date it becomes a party to this Agreement greater than the claim, if any, that the assigning Lender had under Section 2.11 on such date, and (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 (which payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of an election by the Borrower pursuant to Section 2.18, such recordation fee shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), and shall not be payable if an assignment made at the assignee is a Federal Reserve Bank), (v) the consent request of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofan Eligible Assignee that is an existing Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations (other than its obligations under Section 7.05 to the extent any claim thereunder relates to an event arising prior to such assignment) under this Agreement (and, in the case of an Assignment and Assumption 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).
(b) 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: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with this Agreement 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 instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 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 this Agreement 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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 C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in Section 8.02 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 Commitment of, and principal amount of the Advances 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 Borrower, 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 Borrower or any Lender at any reasonable time and from time to an Affiliate time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other entities (other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and any Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender or shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders shall continue to another deal solely and directly with such Lender or to an Approved Fund, in connection with such Lender’s rights and obligations under this Agreement and (Bv) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Note, or any consent to any departure by the Borrower 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, or 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.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of the Borrower Information relating to the Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Advances owing to a it and any Note or Notes held by it) in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Lender from any Board of its obligations hereunder. For Governors of the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Federal Reserve System.
Appears in 1 contract
Assignments and Participations. (a) Each This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender mayand their respective successors and assigns; provided, with however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the BorrowerLenders' prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (c) below, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, Lender may assign to one or more banks other lenders or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including with respect to all or a portion of its CommitmentTerm Loan Commitment and any Term Loan made by it with the written consent of the Administrative Agent and the Administrative Borrower; provided, the Advances owing to it and its participation in Facility LCs); provided however, that (i) each no written consent of the Administrative Agent or the Administrative Borrower shall be required if such assignment shall be of a constantis in connection with any merger, and not a varyingconsolidation, percentage sale, transfer, or other disposition of all or any substantial portion of the assigning Lender’s rights business or loan portfolio of such Lender and obligations under this Agreement, (ii) the Commitment Amount written consent of the assigning Administrative Borrower (A) shall not be unreasonably withheld, conditioned or delayed, (B) shall not be required in connection with any assignment by a Lender being assigned pursuant to each a Lender, an Affiliate of such Lender or a Related Fund of such Lender, (C) shall not be required (1) if such assignment is to a Person other than a Competitor, upon the occurrence and during the continuance of an Event of Default and (determined as 2) if such assignment is to a Competitor, upon the occurrence and during the continuance of an Event of Default under Section 9.01(a), Section 9.01(c) (solely with respect to the failure of the Loan Parties to perform or comply with any covenant or agreement contained in Section 7.02(g) or Section 7.03), Section 9.01(f) or Section 9.01(g) and (D) shall be deemed given if not denied by the Administrative Borrower within 5 Business Days of the date of the Assignment and Assumption request therefor and, with respect to any denial, shall be accompanied by a written explanation thereof.
(c) Assignments shall be subject to the following additional conditions:
(i) Each such assignment) assignment shall be in no event be less than an amount which is at least $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s entire 's Commitment, ) (iii) each except such assignment minimum amount shall be not apply to an Eligible Assigneeassignment by a Lender to (A) a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (ivB) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof);
(ii) The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent), for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and any information required by Section 7.02(q), and such parties shall deliver to the Administrative Agent, for its acceptance and recording in the Registerown account, an Assignment and Assumption, together with a processing and recordation fee of $3,500 5,000 (which except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender), a duly executed IRS Form W-9, and all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act; and
(iii) No such assignment shall be payable by one or more made to (A) any Loan Party, any equity holder of the parties to Parent or any of their respective Affiliates or (B) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the Assignment and Assumptionforegoing Persons described in this clause (B), and not by the Borrower (except in the case of a demand under Section 8.07(g)each of clauses (A) and (B), and shall not be payable if without the assignee is a Federal Reserve Bank), (v) the prior written consent of the Borrower shall not be required after Collateral Agent.
(d) Upon the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, delivery and acceptance of each Assignment and recordingAcceptance, from and after the effective date specified therein and recordation thereof by the Administrative Agent on the Register in each Assignment and Assumptionaccordance with Section 12.07(f), (xA) the assignee thereunder shall be become a party hereto "Lender" hereunder and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Assumption, have the rights and obligations of a Lender hereunder Acceptance and (yB) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto hereto). No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this clause (although d).
(e) By executing and delivering an Assignment and Acceptance, the assigning Lender 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, the 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 this Agreement or any other Loan Document furnished pursuant hereto; (ii) the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement and the other Loan Documents, together with such other documents and information 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 assigning Lender, any Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to be entitled make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents; (v) such assignee appoints and authorizes the Agents to indemnification pursuant take such action as agents on its behalf and to Section 8.04(c)). Notwithstanding anything contained in exercise such powers under this Section 8.07(a) Agreement and the other Loan Documents as are delegated to the contraryAgents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (Avi) the consent 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 Loan Documents are required to be performed by it as a Lender.
(f) The Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at the Payment Office, a copy of each fully completed Assignment and Acceptance delivered to it by the Collateral Agent and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal amount of the Loans (and stated interest thereon) (the "Registered Loans") owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall 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 Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a fully completed Assignment and Acceptance, $5,000 processing and recordation fee, if applicable, a duly executed IRS Form W-9, and all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, the Administrative Agent shall record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to the Collateral Agent).
(h) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s).
(i) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents 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 and the other Loan Documents; and (iii) a participant shall not be required entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any assignment by any Lender to an Affiliate portion of such Lender or to another Lender or to an Approved Fund, the Commitments and the Loans as if it was a Lender.
(Bl) any Any Lender may at any time, without the consent of the Borrower, any LC Issuer time pledge or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign a security interest in all or any part portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, Bank or loans made to such Lender pursuant to securitization or similar credit facility (a "Securitization"); provided that no such pledge or assignment shall release the transferor such Lender from any of its obligations hereunderhereunder or substitute any such pledgee or assignee for such Lender as a party hereto. For The Loan Parties shall cooperate with such Lender and its Affiliates to effect the purposes Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of this Section 8.07(a), its Loans or the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Securitization.
Appears in 1 contract
Sources: Financing Agreement (SMTC Corp)
Assignments and Participations. (a1) Each Lender mayshall not assign all or any portion of its rights and obligations under this Agreement (including, with the prior written consent without limitation, all or a portion of the Borrower, each LC Issuer its Commitment and the Administrative Agent Advances owing to it) except that each Lender may and (which consents shall not be unreasonably withheld or delayed), and if demanded 2) within five days after demand by the Borrower (with a copy of such demand to the Administrative Agent) to (i) any Defaulting Lender, (ii) any Lender that has made a demand for payment pursuant to Section 8.07(g2.11 or 2.14, (iii) any Lender that has asserted pursuant to Section 2.08(b) or 2.12 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (iv) any Lender that fails to consent to an amendment or waiver hereunder for which consent of all Lenders (or all affected Lenders or all adversely affected Lenders) is required and, with respect to any amendment or waiver requiring the consent of all Lenders, as to which the Required Lenders shall to the extent required by have given their consent, such SectionLender shall, in each case of clauses (1) and (2) above, assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it); provided, however, that:
(A) such assignment shall be made with the consent of the Borrower and the Administrative Agent, which consents shall not be unreasonably withheld or delayed (it being agreed that notwithstanding anything herein, during the Certain Funds Period, (x) the Borrower may withhold such consent in its sole discretion unless such assignment is from a Lender to one or more of its Affiliate(s) (in which case such consent shall not be unreasonably withheld or delayed by the Borrower) and (y) the Administrative Agent may withhold such consent in its participation sole discretion in Facility LCsconnection with an assignment pursuant to clause (1) above); provided that that, in the case of the Borrower only, such consent (iA) shall not be required while an Event of Default (or during the Certain Funds Period, a Certain Funds Default) has occurred and is continuing, (B) other than during the Certain Funds Period, shall be deemed given if the Borrower shall not have objected within 10 Business Days following its receipt of notice of such assignment and (C) other than during the Certain Funds Period, such consent shall not be required in the case of an assignment to any other Lender or an Affiliate of any Lender; provided, further that, in each case above, notice thereof shall have been given to the Borrower and the Administrative Agent;
(B) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(C) except in the case of the assigning 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, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 25,000,000 or an integral multiple of $1,000,000 or such Lender’s entire Commitment, 5,000,000 in excess thereof;
(iiiD) [reserved];
(E) each such assignment made as a result of a demand by the Borrower pursuant to this Section 9.07(a)(2) shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement;
(F) no Lender shall be obligated to an Eligible Assigneemake any such assignment as a result of a demand by the Borrower pursuant to this Section 9.07(a)(2), (iv1) unless and until such Lender shall have received one or more payments in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount, and from the Borrower or one or more Eligible Assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.11, 2.14 or 9.04(c)) and (2) unless and until the Borrower shall have paid (or caused to be paid) to the Administrative Agent a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and
(G) the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to this Section 9.07(a)(2), the Borrower) shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAssumption and, together with if such assignment does not occur as a result of a demand by the Borrower pursuant to this Section 9.07(a) (in which case the Borrower shall pay the fee required by subclause (F)(3) of this Section 9.07(a)), a processing and recordation fee of $3,500 (which shall be payable by one or more of 3,500; provided, however, that the parties Administrative Agent may, in its sole discretion, elect to the Assignment waive such processing and Assumption, and not by the Borrower (except recordation fee in the case of any assignment and provided, further that in the event that, in connection with a demand under by the Borrower pursuant to this Section 8.07(g)9.07(a)(2), and the assignor shall not be payable if execute and deliver the assignee is a Federal Reserve Bank), (v) the consent relevant Assignment and Assumption within one Business Day of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultBorrower’s request, and (vi) the Borrower such assignor shall be deemed to have consented to any executed and delivered such assignment unless Assignment and Assumption. The assignee, if it is not a Lender, shall object thereto by written notice deliver to the Administrative Agent within five (5) Business Days after having received notice thereofan Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Section 9.04(a) and (b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and, in the case of an Assignment and Assumption 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).
(b) By executing and delivering an Assignment and Assumption, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows:
(although i) other than as provided in such Assignment and Assumption, 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Assumption;
(iv) such assignee will, independently and without reliance upon any 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) The Administrative Agent, acting solely for this purpose as the agent of the Borrower, shall continue maintain at its address referred to be entitled in Section 9.02
(a) a copy of each Assignment and Assumption delivered to indemnification pursuant and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount (and stated interest) of the Advances owing to, each Lender from time to Section 8.04(c)time (the “Register”). Notwithstanding anything contained The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Section 8.07(aAgreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other entities (other than the contraryBorrower or any of its Affiliates or any natural person) in or to all or a portion of its rights and obligations under this Agreement (including, (Awithout limitation, all or a portion of its Commitment and the Advances owing to it) without the consent of the Administrative Agent or the Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its 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 Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, the Agents 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; and
(v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or stated rate of interest on, the Advances or the stated rate at which any fees or any other amounts payable hereunder are calculated (other than any amendment to the definition of “Default Interest” or to waive any obligation of the Borrower to pay Default Interest), in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or any other amounts payable hereunder, in each case to the extent subject to such participation. Each Lender shall promptly notify the Borrower after any sale of a participation by such Lender pursuant to this Section 9.07(e); provided that the failure of such Lender to give notice to the Borrower as provided herein shall not affect the validity of such participation or impose any obligations on such Lender or the applicable participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall not be required have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with respect any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any assignment such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information received by any Lender to an Affiliate of it from such Lender or to another as more fully set forth in Section 9.08; provided further that, each Lender or to an Approved Fundacknowledges, and shall cause each assignee, participant or proposed assignee or participant to acknowledge, that such disclosure is restricted by the Takeover Rules and the Takeover Panel and that Section 9.08 is subject to those restrictions.
(Bg) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation and the Advances owing to a it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank, provided that no Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Lender.
Appears in 1 contract
Assignments and Participations. (a) Each Lender mayBank may and, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gsubsection (g) hereof, shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations of the assigning Bank under this AgreementAgreement (except that Term Advances and Commitments may be assigned separately), (ii) in the case of a partial assignment, the amount of the Commitment Amount or Term Advances of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 25,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment5,000,000, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the RegisterRegister (as defined in Section 8.07(c)), an Assignment and AssumptionAcceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof3,500. Upon such execution, delivery, acceptance acceptance, and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, which effective date shall be at least three Business Days after the execution thereof, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder Bank hereunder, and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s Bank's rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)hereto). Notwithstanding anything contained the foregoing (unless such assignment is being made on demand of the Borrower pursuant to subsection (g)), any Bank assigning its rights and obligations under this Agreement may retain any Competitive Advances made by it outstanding at such time, and in such case shall retain its rights hereunder in respect of any Advances so retained until such Advances have been repaid in full in accordance with this Section 8.07(aAgreement.
(b) By executing and delivering an Assignment and Acceptance, the 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 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto;
(ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the contraryfinancial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in subsection (Ae) of Article IV 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 Administrative Agent, such assigning Bank or any other 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, except for any required consent of the Borrower and Administrative Agent;
(vi) such assignee appoints and authorizes the Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Bank.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Banks and the Commitment of, and principal amount of the Advances owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, and if the processing fees required by Section 8.07 have been paid to Administrative Agent, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register, (iii) give prompt notice thereof to the Borrower and (iv) send a copy thereof to the Borrower.
(e) Each Bank may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it); provided, however, that (i) such Bank's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement and; provided further, however, that such Bank shall not be required agree with any such bank or other financial institution to permit such bank or other financial institution to enforce the obligations of the Borrower relating to the Advances or to approve of any amendment, modification or waiver of any provision of this Agreement (other than amendments, modifications, or waivers with respect to any assignment by decrease in any Lender to an Affiliate fees payable hereunder or the amount of principal or rate of interest which is payable in respect of such Lender Advances or any extension of the dates fixed for the payment thereof).
(f) Any Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to another Lender this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to an Approved Fund, and (B) any Lender may at any time, without the consent Borrower furnished to such Bank by or on behalf of the Borrower; provided that prior to any such disclosure, the assignee or participant or proposed assignee or participant, if not an Eligible Assignee, shall agree to preserve the confidentiality of any LC Issuer confidential information relating to the Borrower received by it from such Bank.
(g) If any Bank shall make demand for payment under or shall notify the Borrower that it is affected by an event described in Section 2.11 or 2.15 hereunder or shall notify the Administrative AgentAgent pursuant to Section 2.13 hereunder, and without any requirement to have an Assignment and Assumption executedthen within 15 days after such demand or such notice, the Borrower may (i) demand that such Bank assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of in accordance with this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:8.07
Appears in 1 contract
Sources: 364 Day Competitive Advance/Revolving Credit Agreement (Union Pacific Resources Group Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Administrative Agent and the Borrower (such consent not to be unreasonably withheld and, in the case of the Borrower, each LC Issuer and the Administrative Agent (which consents such consent shall not be unreasonably withheld or delayedrequired if an Event of Default has occurred and is continuing), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) prior to the effectiveness of the Term Loan Conversion Option, the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than the lesser of (A) $5,000,000 or, if less, the entire amount 10,000,000 and (B) all of such Lender’s Commitment's rights and obligations and, and if the preceding clause (A) is applicable, shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment1,000,000, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with Acceptance and such parties (other than when Citibank is an assigning party) shall also deliver to the Administrative Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(b) 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: (although an 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative 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 be entitled 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 Administrative Agent to indemnification pursuant take such action as agent on its behalf and to Section 8.04(c)). Notwithstanding anything contained in exercise such powers under this Section 8.07(a) Agreement as are delegated to the contraryAdministrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (Avii) such assignee agrees that it will perform in accordance with their terms all of the consent obligations that by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance (and copies of the related consents of the Borrower and the Administrative Agent to such assignment) delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the "Register"). The entries in the Register shall not be required with respect to any assignment conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may assign to one or more banks or other entities any Advance made by it.
(f) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it); provided, however, that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) 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 promissory note held pursuant to Section 2.01(b) for all purposes of this Agreement, (iv) the Borrower, the Administrative 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 and (v) the holder of any such participation, other than an Affiliate of such Lender, shall not be entitled to require such Lender to take or omit to another take any action hereunder, except action (A) extending the time for payment of interest on, or the final maturity of any portion of the principal amount of, the Advances or (B) reducing the principal amount of or the rate of interest payable on the Advances. Without limiting the generality of the foregoing: (i) such participating banks or other entities shall be entitled to the cost protection provisions contained in Sections 2.08, 2.12 and 8.04(b) only if, and to the same extent, the Lender from which such participating banks or other entities acquired its participation would, at the time, be entitled to claim thereunder; and (ii) such participating banks or other entities shall also, to the fullest extent permitted by law, be entitled to exercise the rights of set-off contained in Section 8.05 as if such participating banks or other entities were Lenders hereunder.
(g) If any Lender (or any bank, financial institution, or other entity to which such Lender has sold a participation) shall make any demand for payment under Section 2.11(b), then within 30 days after any such demand (if, but only if, such demanded payment has been made by the Borrower), the Borrower may, with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower all (but not less than all) of such Lender's Commitment (if any) and the Advances owing to it within the period ending on the later to occur of such 30th day and the last day of the longest of the then current Interest Periods for such Advances, provided that (i) no Event of Default or event that, with the passage of time or the giving of notice, or both, would constitute an Approved FundEvent of Default shall then have occurred and be continuing, (ii) the Borrower shall have satisfied all its presently due obligations to such Lender under this Agreement, and (Biii) if such Eligible Assignee designated by the Borrower is not an existing Lender on the date of such demand, the Borrower shall have delivered to the Administrative Agent an administrative fee of $3,500. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignees for all or part of such Lender's Commitment or Advances, then such demand by the Borrower shall become ineffective; it being understood for purposes of this subsection (g) that such assignment shall be conclusively deemed to be on terms acceptable to such Lender, and such Lender shall be compelled to consummate such assignment to an Eligible Assignee designated by the Borrower, if such Eligible Assignee (i) shall agree to such assignment by entering into an Assignment and Acceptance in substantially the form of Exhibit B hereto with such Lender and (ii) shall offer compensation to such Lender in an amount equal to all amounts then owing by the Borrower to such Lender hereunder made by the Borrower to such Lender, whether for principal, interest, fees, costs or expenses (other than the demanded payment referred to above and payable by the Borrower as a condition to the Borrower's right to demand such assignment), or otherwise.
(h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender.
(i) Anything in this Section 8.07 to the contrary notwithstanding, any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, (i) assign and without any requirement to have an Assignment and Assumption executed, assign pledge all or any part portion of its rights under this Agreement Commitment and the Advances owing to a it to any Federal Reserve Bank (and its transferees) as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank; provided, provided that no such assignment shall release the transferor assigning Lender from its obligations hereunder; or (ii) assign its Commitments, Advances and other rights and obligations hereunder to any of its obligations Affiliates upon notice to, but without the consent of, the Borrower and the Administrative Agent.
(j) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC") of such Granting Lender identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any such SPC to make any Advance, (ii) if such SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof and (iii) no SPC or Granting Lender shall be entitled to receive any greater amount pursuant to Section 2.07 or 2.11 than the Granting Lender would have been entitled to receive had the Granting Lender not otherwise granted such SPC the option to provide any Advance to the Borrower. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would otherwise be liable so long as, and to the extent that, the related Granting Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against or join any other person in instituting against such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. Notwithstanding the foregoing, the Granting Lender unconditionally agrees to indemnify the Borrower, the Administrative Agent and each Lender against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be incurred by or asserted against the Borrower, the Administrative Agent or such Lender, as the case may be, in any way relating to or arising as a consequence of any such forbearance or delay in the initiation of any such proceeding against its SPC. Each party hereto hereby acknowledges and agrees that no SPC shall have the rights of a Lender hereunder, such rights being retained by the applicable Granting Lender. Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPC shall have any voting rights hereunder and that the voting rights attributable to any Advance made by an SPC shall be exercised only by the relevant Granting Lender and that each Granting Lender shall serve as the administrative agent and attorney-in-fact for its SPC and shall on behalf of its SPC receive any and all payments made for the benefit of such SPC and take all actions hereunder to the extent, if any, such SPC shall have any rights hereunder. For In addition, notwithstanding anything to the purposes contrary contained in this Agreement any SPC may with notice to, but without the prior written consent of this any other party hereto, assign all or a portion of its interest in any Advances to the Granting Lender. This Section 8.07(a)may not be amended without the prior written consent of each Granting Lender, all or any part of whose Advance is being funded by an SPC at the terms “Approved Fund” and “Ineligible Institution” have the following meanings:time of such amendment.
Appears in 1 contract
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrowerso long as no Default shall have occurred and be continuing, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.10 or 2.12) shall upon at least five Business Days' notice to such Lender and the extent required by such SectionAdministrative Agent will, assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment shall be of a constant, and not a varying, percentage of all of the assigning a Lender’s 's rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 1,000,000 (or, if lessin each case, such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentBorrower) under each Facility for which a Commitment is being assigned, (iiiii) each such assignment shall be to an Eligible Assignee, Assignee and (iviii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and (except in the case of an assignment to a Person that, immediately prior to such assignment, was an Affiliate or an Approved Fund of the assigning Lender) a processing and recordation fee of $3,500 3,500.
(which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (vb) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AssumptionAcceptance, (xi) 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 AssumptionAcceptance, have the rights and obligations of a Lender or the Issuing Bank, as the case may be, hereunder and (yii) the Lender or the Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or of the remaining portion of an assigning Lender’s 's or the Issuing Bank's rights and obligations under this Agreement, such Lender or the Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower Party makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any 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, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan 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 Section 4.01 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 any Agent, such assigning Lender Party or any other Lender Party 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 each 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 such Agent by the terms hereof and thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender or the Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Lender Parties and the Commitment under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party 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 Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment 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 form of Exhibit A-1 or A-2 hereto, as the case may be.
(f) The Issuing Bank may assign to an Affiliate Eligible Assignee all of such Lender or to another Lender or to an Approved Fund, its rights and (B) any Lender may obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, without however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the consent of the Borrower, any LC Issuer or parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and without any requirement to have recording in the Register, an Assignment and Assumption executedAcceptance, assign together with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender Party's obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party 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.
(h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any part portion of its rights under this Agreement and the other Loan Documents (including, without limitation, the Advances owing to a it and the Note or Notes held by it) in favor of any Federal Reserve BankBank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(j) Notwithstanding anything to the contrary contained herein, provided any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such assignment pledge shall release the transferor pledging Lender from any of its obligations hereunder. For under the purposes Loan Documents and (ii) such trustee shall not be entitled to exercise any of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the following meanings:pledged interest through foreclosure or otherwise.
Appears in 1 contract
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender maymay assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees (each, an "Assignee"), with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not be unreasonably withheld or delayed)) of:
(A) Borrowers; provided, that no consent of Borrowers shall be required (1) if a Default or Event of Default has occurred and if demanded by the Borrower pursuant is continuing, or (2) in connection with an assignment to Section 8.07(g) shall to the extent required by such Section, assign to one a Person that is a Lender or more banks or other entities an Affiliate (other than natural persons) of a Lender; provided further, that Borrowers shall be deemed to have consented to a proposed assignment unless Administrative Borrower objects thereto by written notice to Agent within five Business Days after having received notice thereof; and
(B) Agent, Swing Lender, and Issuing Bank.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party, or an Ineligible InstitutionAffiliate of a Loan Party, (C) all or a portion the amount of its the Commitments and the other rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignmentassignment is delivered to Agent) shall be in no event be less than a minimum amount (unless waived by Agent) of $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and such minimum amount shall not be payable if the assignee is a Federal Reserve Bank), apply to (vI) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such an assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender or to another Lender or to an Approved FundLender, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:or
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with The Borrower may not assign its rights or obligations hereunder or under the Notes without the prior written consent of all of the Borrower, each LC Issuer Lenders and the Administrative Agent Agent.
(which consents shall not be unreasonably withheld b) Any Lender may sell, assign, transfer or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign negotiate to one or more banks other lenders, commercial banks, insurance companies, other financial institutions or any other entities (other than an Ineligible Institution) Person all or a any portion of its rights and obligations under hereunder pursuant to an Assignment Agreement substantially in the form of Exhibit E hereto ("ASSIGNMENT"), and acceptance of such Assignment by any assignee shall constitute the agreement of such assignee to be bound by the terms of this Agreement (including all or a portion of its Commitment, the Advances owing applicable to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights .
(c) Promptly after receiving evidence of an assignment under Section 12.06(b), the Agent shall send a notice of such assignment to the Borrower. Upon receipt of such notice and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of Notes that are the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if lesssubject thereof, the entire amount of such Lender’s CommitmentBorrower will, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentat its own expense, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver new Notes to the Administrative Agentassignor and/or assignee, for its acceptance and recording as appropriate, in the Register, an accordance with their respective interests. Upon receipt of such executed Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties Notes which are the subject thereof, the Borrower will, at its own expense, execute and deliver new Notes to the Assignment and Assumptionassignor and/or assignee, and not by as appropriate, in accordance with their respective interests as they appear. Upon the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance effectiveness of any Event of Default, and (vi) the Borrower shall be deemed assignment pursuant to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (xSection 12.06(b) the assignee thereunder shall be will become a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:," if
Appears in 1 contract
Sources: Subordinated Credit Agreement (Brigham Exploration Co)
Assignments and Participations. (a) Each Lender may, Borrower shall not have the right to assign this Agreement or any interest therein except with the prior written consent of Lenders.
(b) Notwithstanding subsection (c) of this Section 13.4, nothing herein shall restrict, prevent or prohibit any Lender from (i) pledging its Loans hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank or (ii) granting assignments or participations in such Lender's Loans and/or Commitments hereunder to any Approved Assignee. Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to Borrower.
(c) Any Lender may, each LC Issuer in the ordinary course of its lending business and in accordance with applicable law, at any time, assign to any Approved Assignee and, with the Administrative Agent consent of Agent, and, if no Event of Default then exists, Borrower (which consents shall with such consent not to be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitmentand any Revolving Notes held by it; provided, the Advances owing to it and its participation in Facility LCs); provided however, that (i) any such assignment of a portion must be for a constant and non varying portion of its Loans and Commitments, (ii) for each such assignment, the parties thereto shall execute and deliver to Agent, for its acceptance and recording in the Register (as defined below), an Assignment and Acceptance, together with any Revolving Note or Revolving Notes subject to such assignment and a processing and recordation fee of $3,000 to be paid by the assignee, (iii) no such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be for less than $5,000,000 or, if less, the entire amount remaining Commitments of such Lender’s Commitment, Lender of the Commitments and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) if such assignee is a Foreign Lender, all of the parties requirements of Section 1.9 shall have been satisfied as a condition to each such assignment; and provided, further, that any assignment to an Approved Assignee shall execute and deliver not be subject to the Administrative Agent, for its acceptance minimum assignment amounts specified herein. Upon such execution and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee delivery of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed Acceptance to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recordingAgent, from and after the effective date specified in each Assignment and AssumptionAcceptance Date, (x) the assignee thereunder shall be a party hereto hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AssumptionAcceptance, such assignee shall have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than any rights it may have pursuant to Sections 12.3 and 13.7 which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto hereto).
(although d) By executing and delivering an Assignment and Acceptance, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Acceptance, the assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the Revolving Notes or any other instrument or document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Obligors or the performance or observance by the Obligors of any of its obligations under this Agreement or any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto, (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 7.1 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 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 appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) 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.
(e) Agent shall maintain at its address referred to in Section 13.6 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 Lenders and the Commitments of, 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 Borrower, Agent, and Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Affiliate Assignment and Acceptance executed by an assigning Lender, together with any Revolving Note or Revolving Notes subject to such assignment, Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrower. Within five (5) Business Days after its receipt of such notice, if requested by the assignee, Borrower shall execute and deliver to Agent in exchange for any surrendered Revolving Note or Revolving Notes (which the assigning Lender agrees to promptly deliver to Borrower) a new Revolving Note or Revolving Notes to another the order of the assignee in an amount equal to the Commitment or Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment or Commitments hereunder and if requested by it, a new Revolving Note or Revolving Notes to the order of the assigning Lender in an Approved Fundamount equal to the Commitment or Commitments retained by it hereunder. Any such new Revolving Note or Revolving Notes shall re-evidence the indebtedness outstanding under any old Revolving Notes or Revolving Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of any such surrendered Revolving Note or Revolving Notes (or if none, the amount of the Commitments so assigned), and shall otherwise be in substantially the form of any Revolving Note or Revolving Notes subject to such assignments.
(Bg) any Each Lender may at any time, sell participations (without the consent of Agent, Borrower or any other Lender) to one or more parties in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments, the Loans owing to it and any Revolving Note or Revolving Notes held by it); provided that (i) such Lender's obligations under this Agreement (including its Commitments to Borrower hereunder) 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 Revolving Note for all purposes of this Agreement, (iv) Borrower, any LC Issuer or the Administrative Agent, and without any requirement the other Lenders shall continue to have an Assignment deal solely and Assumption executed, assign all or any part of its directly with such Lender in connection with such Lender's rights and obligations under this Agreement and (v) such Lender shall not transfer, grant, assign or sell any participation under which the participant shall have rights to approve any amendment or waiver of this Agreement except to the extent such amendment or waiver would (A) extend the final maturity date or the date for the payments of any Installment of fees or principal or interest of any Loans in which such participant is participating, (B) reduce the amount of any Installment of principal of the Loans in which such participant is participating, (C) except as otherwise expressly provided in this Agreement, reduce the interest rate applicable to the Loans in which such participant is participating, or (D) except as otherwise expressly provided in this Agreement, reduce any fees payable hereunder.
(h) Each Lender agrees that, without the prior written consent of Borrower and Agent, it will not make any assignment or sell a Federal Reserve Bankparticipation hereunder in any manner or under any circumstances that would require registration or qualification of, provided that no or filings in respect of, any Loan, Revolving Note or other Obligation under the securities laws of the United States of America or of any jurisdiction.
(i) In connection with the efforts of any Lender to assign its rights or obligations or to participate interests, such assignment shall release the transferor Lender from may disclose any information in its possession regarding Borrower or any of its obligations hereunder. For the purposes of this Subsidiaries, subject to Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:13.14.
Appears in 1 contract
Sources: Loan and Security Agreement (Anchor Funding Services, Inc.)
Assignments and Participations. (a) Each Lender maymay assign and grant participations in, with at any time or times, the prior written Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not, to an Affiliate or to any other Person; provided, however, that any such disposition (other than a participation pursuant to Section 10.2(c), or a disposition of any type to another Lender or an Affiliate of a Lender) shall (i) be subject to the consent of Agent and, if no Event of Default shall have occurred and be continuing, the consent of Borrower, each LC Issuer and the Administrative Agent (which consents consent of Borrower shall not be unreasonably withheld withheld, denied or delayed), (ii) require the execution of an assignment agreement (an "Assignment Agreement" substantially in the form attached hereto as Exhibit F and otherwise in form and substance satisfactory to, and if demanded by the Borrower pursuant to Section 8.07(gacknowledged by, Agent) shall and (iii) be conditioned on such assignee Lender representing to the extent required by such Sectionassigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; and, provided, further, that any Lender may assign to one or more banks or other entities (other than an Ineligible Institution) create a security interest in all or a any portion of its rights and obligations under this Agreement (including all or a portion any of its CommitmentNotes in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System (or any successor regulation), and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, however, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document.
(b) In the case of an assignment by a Lender under this Section 10.2, the Advances owing assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it and its participation in Facility LCs)would if it were a Lender hereunder; provided provided, however, that (i) any such partial assignment shall be at least (x) $5,000,000 if such assignee is not a Lender and (y) in multiples of $1,000,000 in the event such assignee is a Lender; and (ii) each such 139 assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s 's rights and obligations under this Agreement, (ii) Agreement with respect to the Commitment Amount being assigned and the assignment shall cover the same percentage of the assigning Lender Lender's Loans and Commitments being assigned pursuant to each such assignment (determined and Letter of Credit Obligations; and, provided, further, that no Lender shall hold a Revolving Credit Commitment nor a Term Loan Commitment, as the case may be of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 orafter giving effect to any such assignment. Upon execution by the assignor and the assignee of an instrument pursuant to which the assignee assumes such rights and obligations, if less, payment by such assignee to such assignor of an amount equal to the entire amount purchase price agreed between such assignor and such assignee and delivery to Agent and Borrower of an executed copy of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, instrument together with payment to Agent of a processing and recordation fee of $3,500 (which 3,500, such assignee shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) the assignee thereunder shall be a party hereto andhave, to the extent that of such assignment (unless otherwise provided therein), the same rights and obligations hereunder benefits as it would have been assigned to if it pursuant to such Assignment and Assumption, have the rights and obligations of were a Lender hereunder and (y) the Lender assignor thereunder shallshall be, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Assumption, relinquish its rights and be assignment (unless otherwise provided therein) released from its obligations under this Agreement and, in Agreement. Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the case of an Assignment assignee and Assumption covering all or that the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender assignee shall cease be considered to be a party hereto "Lender." In all instances, each Lender's liability to make Loans shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. Upon any such assignment, Borrower, at its own expense, shall execute and deliver to Agent in exchange for the surrendered Note of the assignor Lender a new Note to the order of the assignee Lender in an amount equal to the Commitment assumed by such assignee Lender and if the assignor Lender has retained a Commitment hereunder a new Note to the order of the assignor Lender in an amount equal to such retained Commitment. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. The Notes surrendered to Agent shall be returned by Agent to Borrower marked "cancelled".
(although an assigning Lender shall continue to be entitled to indemnification pursuant c) Subject to Section 8.04(c10.2(a)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any each Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign sell participations in all or any part of its rights Loans and its Commitments; provided that (a) all amounts payable by Borrower hereunder shall be determined as if such Lender had not sold such participation and the participating Lender shall remain a "Lender" for all purposes under this Agreement Agreement, (b) any such grant of a participation will be made in compliance with all applicable state or federal laws, rules, and regulations, (c) any such participation shall be divided pro rata among the participating Lender's share of the Loan and the Letter of Credit Obligations, and (d) such Lender shall not grant any participation under which the participant shall have rights to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from approve any of its obligations hereunder. For the purposes amendment to or waiver of this Section 8.07(a)Agreement or the Loan Documents, except to the terms “Approved Fund” and “Ineligible Institution” have extent such amendment or waiver would (i) extend the following meanings:maturity date for payment of the Loan in which such participant is participating; (ii) reduce the interest rate or the amount of principal or Fees applicable to the Loan in which such participant is participating, other than as a result of waiving the applicability of any post-default increase in interest rates or Fees; or
Appears in 1 contract
Assignments and Participations. (a) Each Lender mayagrees that the Notes or interest therein acquired by such Lender pursuant to this Agreement will be acquired for investment only and not with a view to any public distribution thereof, with the prior written consent and that such Lender will not offer to sell or otherwise dispose of the BorrowerNotes or the interest therein so acquired by it (or any interest therein) in violation of any of the registration requirements of the Securities Act or any applicable State securities laws. Each Lender hereby confirms and agrees that, each LC Issuer in connection with any syndication, offering, transfer or sale by it of any interest in the Notes, such Lender has not engaged and the Administrative Agent will not engage in a general solicitation or general advertising.
(which consents b) Except as provided in Section 11.01(f), no Lender may sell, assign or otherwise transfer any portion of its rights or obligations hereunder (other than to one of its Subsidiaries provided that any such Subsidiary shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant entitled to receive any payments under Section 8.07(g2.13) shall prior to the extent required by such SectionTransfer Restriction Termination Date. Subject to the foregoing sentence, each Lender may upon at least 30 days’ notice to the Deal Agent, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its CommitmentAgreement; provided, the Advances owing to it and its participation in Facility LCs); provided however, that (i) each such assignment shall be of a constant, and not a varying, varying percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than the lesser of (A) $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 15,000,000 or an integral multiple of $1,000,000 or such in excess of that amount and (B) the full amount of the assigning Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Deal Agent, for its acceptance and recording in the Lender Register, an Assignment and AssumptionAcceptance, together with a processing and recordation fee of $3,500 (which or such lesser amount as shall be payable by one or more of the parties to the Assignment and Assumption, and not approved by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank)Deal Agent, (v) the consent parties to each such assignment shall have agreed to reimburse the Deal Agent for all reasonable fees, costs and expenses (including the reasonable fees and out-of-pocket expenses of counsel for the Borrower shall not be required after Deal Agent) incurred by the occurrence and during the continuance of any Event of DefaultDeal Agent in connection with such assignment, and (vi) each Person that becomes a Lender under an Assignment and Acceptance shall agree to be bound by the Borrower confidentiality provisions of Article XII and (vii) there shall be deemed to have consented to any such no increased costs, expenses or taxes incurred by the Deal Agent or the Lenders upon assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofor participation. Upon such execution, delivery, delivery and acceptance by the Deal Agent and recordingthe recording by the Deal Agent, from and after the effective date specified in each Assignment and AssumptionAcceptance, which effective date shall be the date of acceptance thereof by the Deal Agent, unless a later date is specified therein, (xi) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (yii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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: (although an 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assignee confirms that it has received a copy of this Agreement, together with copies of such financial statements and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iii) such assignee will, independently and without reliance upon the Deal 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; (iv) such assigning Lender and such assignee confirm that such assignee is an Eligible Assignee; (v) such assignee appoints and authorizes the Deal Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to such agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) 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 entitled performed by it as a Lender.
(d) The Deal Agent shall maintain at its address referred to indemnification pursuant herein a copy of each Assignment and Acceptance delivered to Section 8.04(c)and accepted by it and a register for the recordation of the names, addresses and Commitment of each Lender and the Principal Amount of each Loan made by each Lender from time to time (the “Lender Register”). Notwithstanding anything contained The entries in this Section 8.07(a) to the contraryLender Register shall be conclusive and binding for all purposes, (A) the consent of absent manifest error, and the Borrower and the Administrative Lenders may treat each Person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement. The Lender Register shall be available for inspection by any Agent or Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Subject to the provisions of Section 11.01(a), upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the Deal Agent shall, if such Assignment and Acceptance has been completed, accept such Assignment and Acceptance, and the Deal Agent shall not be required then record the information contained therein in the Lender Register.
(f) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and each Loan owned by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Deal 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. With respect to any assignment by any participation described in this Section, the participant’s rights as set forth in the agreement between such participant and the applicable Lender to an Affiliate agree to or to restrict such Lender’s ability to agree to any modification, waiver or release of any of the terms of this Agreement or to exercise or refrain from exercising any powers or rights which such Lender may have under or in respect of this Agreement shall be limited to another the right to consent to any of the matters set forth in Section 11.01.
(g) Subject to the provisions of Article XII, each Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to an Approved Fundthis Section, and disclose to the assignee or participant or proposed assignee or participant any information, including Confidential Information, relating to the Borrower furnished to such Lender by or on behalf of the Borrower.
(Bh) any Any Lender may at any timetime pledge, without the consent of the Borrower, any LC Issuer grant or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign a security interest in all or any part portion of its rights (including rights to payment of principal and interest) under this Agreement or any other Transaction Document to secure obligations of such Lender, including any pledge, grant or assignment of its Loan to secure obligations to a Federal Reserve Bank, without notice to or consent of the Deal Agent, Servicer or any other party, and neither Section 11.01(a) nor 11.01(b) shall apply to any such pledge, grant or assignment of a security interest; provided that no such pledge, grant or assignment of a security interest shall release the transferor a Lender from any of its obligations hereunder. For hereunder or under any other Transaction Document, as the purposes of this Section 8.07(a)case may be, or substitute any such pledgee, grantee or assignee for such Lender as a party hereto or to the terms “Approved Fund” and “Ineligible Institution” have other Transaction Documents, as the following meanings:case may be.
Appears in 1 contract
Sources: Investment Agreement (Santander Holdings USA, Inc.)
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.10 or 2.12) upon at least 5 Business Days' notice to such Lender and the Agent, shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more Facilities, (ii) except in the assigning 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, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than the lesser of (x) $5,000,000 or, if less, in the entire aggregate and (y) the total amount of such assigning Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment's Commitment hereunder, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Agent, shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement and shall be to one or more Eligible Assignees that are not then claiming the amounts demanded by the assigning Lender under Section 2.10 or 2.11, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) no such assignments to any Person that is not a Lender or an Affiliate of a Lender shall be permitted without the consent of the Agent (until the Agent shall have notified the Lenders that syndication of the Commitments hereunder has been completed) and the Borrower (such consent of the Borrower shall not be unreasonably withheld or delayed) provided that no consent of the Borrower shall be required upon the occurrence and the continuance of an Event of Default, and (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500.
(b) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) 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 a processing and recordation fee of $3,500 3,500.
(which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (vc) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender or the Issuing Bank, as the case may be, hereunder and (y) the Lender or the Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s 's or the Issuing Bank's rights and obligations under this Agreement, such Lender or the Issuing Bank shall cease to be a party hereto).
(d) 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: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required 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 Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan 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 Section 4.01, 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, make and continue to make its own credit decisions entering into such Assignment and Acceptance and thereafter 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 and the other Loan Documents are required to be performed by it as a Lender or Issuing Bank, as the case may be.
(e) The Agent shall maintain at its address referred to in Section 8.02 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 Commitment under each Facility of, and principal amount of the Advances owing under each Facility 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 Borrower, 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(f) 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 C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under a Facility pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of the assigning Lender in an amount equal to the Commitment 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 form of Exhibit A hereto, as the case may be.
(g) Each Lender may sell participations in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it) to any Lender to an Person other than any Loan Party or any Subsidiary or Affiliate of such Lender or a Loan Party (subject to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, such consent not to be unreasonably withheld or delayed); provided, however, that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitments) 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 LC Issuer such Note for all purposes of this Agreement, (iv) the Borrower, 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 Loan Document, or any consent to any departure by any Loan Party therefrom, except to the Administrative Agentextent that such amendment, and without waiver or consent would reduce the principal of, or interest on, the Notes or any requirement fees or other amounts payable hereunder, in each case to have an Assignment and Assumption executedthe extent subject to such participation, assign 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.
(h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender.
(i) Notwithstanding any other provision contained in this Agreement, any Lender may at any time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Advances owing to a it and the Note or Notes held by it) in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Lender from any Board of its obligations hereunder. For Governors of the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Federal Reserve System.
Appears in 1 contract
Assignments and Participations. (a) Each Lender Bank may, with upon obtaining the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents consent by any such party shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it Commitment and its participation in Facility LCsNote or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning LenderBank’s rights and obligations under this Agreementso assigned, (ii) the amount of the Commitment Amount (or Advances) of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) may be in the amount of such Bank’s entire Commitment (or Advances) but otherwise shall in no event not be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentunless the Borrower and the Agent otherwise consent, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall (A) execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register, an Assignment and Assumption, together with Acceptance and (B) deliver to the Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of 3,500; provided that the parties Agent may, in its sole discretion, elect to the Assignment waive such processing and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank)recording fee, (v) if no Event of Default has occurred and is continuing, the prior written consent of the Borrower (which consent shall not be unreasonably withheld or delayed) shall be required after the occurrence and during the continuance for an assignment by a Bank to an assignee which is not a Bank or an Affiliate or Approved Fund of any Event of Default, and (vi) a Bank; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five ten (510) Business Days after having received notice thereof, and (vi) consent of the Agent shall not be required for an assignment by a Bank to an assignee which is a Bank or an Affiliate or Approved Fund of a Bank. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) the assignee thereunder which effective date shall be a party hereto andat least two Business Days after the execution thereof, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance 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 hereto).
(although b) By executing and delivering an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to Assignment and Acceptance, the contrary, (A) the consent of the Borrower Bank assignor thereunder and the Administrative Agent shall not be required 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 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) or 5.01(b) 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 Bank or any other 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 on its behalf and to exercise such powers under this Agreement as are delegated to the Agent by the terms hereof, together with such powers 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 Bank.
(c) The Agent (or a party designated by the Agent, which may include the Borrower) shall maintain at its address referred to in Section 9.02 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 Banks and the Commitment of, and principal amount of the Advances owing to, each Bank from time to time (the “Register”). The Agent (or its designee) shall also reflect in the Register the transfer of any portion of any Bank’s interest in the Notes, any Advances not evidenced by a Note or any other obligations hereunder (collectively, the “Obligations”), and the Agent (or its designee) shall retain a copy of the assignment transferring the Obligations for the registration or transfer of the Obligations, and shall enter the names and addresses of the transferees of the Obligations. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks shall treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower at any Lender reasonable time and from time to an Affiliate time upon reasonable prior notice. Solely for purposes of this Section 9.08(c) and for tax purposes only, the Agent (or its designee) shall be the Borrower’s agent for purposes of maintaining the Register and notations of transfer in the Register. The Obligations are registered obligations and the right, title and interest of any Bank and/or its assignees in and to such Obligations shall be transferable only upon notation of such Lender transfer in the Register (and each Note shall expressly so provide). This Section 9.08(c) shall be construed so that the Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related Treasury Regulations.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee representing that it is an Eligible Assignee, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Bank may sell participations to one or more banks or other entities in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Note or Notes held by it); provided, however, that (i) such Bank’s obligations under this Agreement (including, without limitation, its Commitment to another Lender the Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of any such Note and the maker of any Advance for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and (v) any agreement between such Bank and any participant in connection with such participating interest shall not restrict such Bank’s right to agree to any amendment or waiver of any provision of this Agreement, or any consent to any departure by the Borrower therefrom, except (to the extent such participant would be affected thereby) a reduction of the principal of, or interest on, any Advance or postponement of any date fixed for payment thereof. Each Bank that sells a participation shall, acting solely for this purpose as an Approved Fundagent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the obligations under this Agreement (the “Participant Register”); provided that no Bank shall have any obligation to disclose any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under this Agreement) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(f) The Borrower agrees that each participant shall be entitled to the benefits of Sections 2.15 and 2.20 (subject to the requirements and limitations therein, including the requirements under Section 2.20(f) (it being understood that the documentation required under Section 2.20(f) shall be delivered to the participating Bank)) to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that such participant (A) agrees to be subject to the provisions of Sections 2.20(i) and 2.21 as if it were an assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any Lender may greater payment under Sections 2.15 or 2.20, with respect to any participation, than its participating Bank would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation.
(g) Notwithstanding any other provisions set forth in this Agreement, any Bank at any timetime may assign, as collateral or otherwise, any of its rights (including, without limitation, rights to payments of principal of and/or interest on the Advances) under this Agreement to any Federal Reserve Bank or any central bank having jurisdiction over such Bank without notice to or consent of the Borrower, any LC Issuer other Bank or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:.
Appears in 1 contract
Assignments and Participations. (a) Each Lender maymay sell, with the prior written consent of the Borrowertransfer, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld negotiate or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement hereunder (including all or a portion of its Commitmentrights and obligations with respect to the Term Loans, the Advances owing to it Revolving Loans and its participation in Facility LCsthe Letters of Credit); provided provided, however, that (ii)(A) each if any such assignment shall be of a constantthe assigning Lender's Revolving Credit Outstandings and Revolving Credit Commitments, and not a varying, such assignment shall cover the same percentage of all such Lender's Revolving Credit Outstandings and Revolving Credit Commitment and (B) if any such assignment shall be of the assigning Lender’s rights 's Term Loans and obligations under this AgreementTerm Loan Commitment, such assignment shall cover the same percentage of such Lender's Term Loans and Term Loan Commitment, (ii) the Commitment Amount of the assigning Lender aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event (if less than the Assignor's entire interest) be less than (x) in the case of any Revolving Loans, $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 in excess thereof, and (y) in the case of any Term Loan, $1,000,000 or an integral multiple of $500,000 in excess thereof, except, in either case, (A) with the consent of the Borrower (except in respect of assignments by the initial Term Loan Lenders) and the Administrative Agent (in each case such consent not to be unreasonably withheld); or (B) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender’s entire Commitment, and (iii) each if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to an Eligible Assigneethe prior consent of the Administrative Agent and the Borrower (which consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing. Any such assignment need not be ratable as among the Term Loan Facility and the Revolving Credit Facility.
(ivb) the The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Registerrecording, an Assignment and AssumptionAcceptance, together with a processing and recordation fee of $3,500 any Note (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is assigning Lender's Loans are evidenced by a Federal Reserve Bank), (vNote) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed subject to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofassignment. Upon such the execution, delivery, acceptance and recording, from and after the effective date specified in each recording of any Assignment and Assumption, (x) the assignee thereunder shall be a party hereto Acceptance and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, have the rights and obligations other than in respect of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification assignments made pursuant to Section 8.04(c)). Notwithstanding anything contained in this 2.16 (Substitution of Lenders) and Section 8.07(a) to the contrary, 11.1 (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:
Appears in 1 contract
Sources: Credit Agreement (FMC Corp)
Assignments and Participations. (a) Each Lender maymay at any time, with notice to the Company prior written to making any proposal to any potential assignee and with the consent of the BorrowerCompany, each LC Issuer and the Administrative Agent (which consents consent shall not be unreasonably withheld or delayed)(and shall at any time, and if demanded requested to do so by the Borrower Company pursuant to Section 8.07(g2.05(b), 2.10 or 2.13) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Revolving Credit Advances owing to it and its participation in Facility LCsthe Revolving Credit Note or Notes held by it); provided provided, however, that (i) the Company's consent shall not be required (A) in the case of an assignment to an Affiliate of such Lender, provided that notice thereof shall have been given to the Company and the Agent, or (B) in the case of an assignment of the type described in subsection (g) below; (ii) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement (other than any right to make Competitive Bid Advances, Competitive Bid Advances owing to it and Competitive Bid Notes); (iii) except in the case of the assigning 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, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 10,000,000 or an integral multiple of $1,000,000 or such Lender’s entire Commitment, in excess thereof; (iiiiv) each such assignment shall be to an Eligible Assignee, (ivv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with made as a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case result of a demand under by the Company pursuant to this Section 8.07(g))9.07(a) shall be arranged by the Company after consultation with, and subject to the approval of, the Agent, and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent either an assignment of the Borrower shall not be required after the occurrence and during the continuance all of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of the assigning Lender under this Agreement or an assignment of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that portion of such rights and obligations hereunder have been assigned by it pursuant to made concurrently with another such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in assignment or other such assignments that together cover all of the case of an Assignment and Assumption covering all or the remaining portion of an assigning Lender’s rights and obligations of the assigning Lender under this Agreement, (vi) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 9.07(a) unless and until such Lender shall cease to be a party hereto (although have received one or more payments from either the Borrower or one or more Eligible Assignees in an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) aggregate amount at least equal to the contraryaggregate outstanding principal amount of the Advances owing to such Lender, (A) together with accrued interest thereon to the consent date of payment of such principal amount and all other amounts payable to such Lender under this Agreement and all of the obligations of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to shall have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:been satisfied; and
Appears in 1 contract
Sources: 364 Day Credit Agreement (Honeywell International Inc)
Assignments and Participations. (a) Each Lender may, with The Borrower may not assign its rights or obligations hereunder or under the Notes without the prior written consent of all of the Banks and the Agent.
(b) No Bank may assign any of its Loans, its Note or its Commitment without the prior consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (which consents shall not be unreasonably withheld or delayed)Agent; provided, and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each any such assignment shall be in the amount of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof; (ii) no Bank may assign in the aggregate more than 49% of the greatest amount of its Commitment after the date hereof, (iii) each the Bank making such assignment shall be pay a processing fee to an Eligible Assigneethe Agent in the amount of $2,000, (iv) such assigning Bank shall also simultaneously assign to such assignee Bank the parties to same proportion of each such assignment shall execute and deliver to the Administrative Agent, for of its acceptance and recording in the Register, an Assignment and Assumption, Loans then outstanding (together with a processing the same proportion of its Note then outstanding) and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the no consent of the Borrower shall not be required after the occurrence and during the continuance in respect of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent at any time that an Event of the Borrower Default shall have occurred and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender continuing or to another Lender or to an Approved Fund, and (B) to any Lender Bank or affiliate of any Bank. In addition, any Bank may at any time, without the consent of the Borrower, any LC Issuer Borrower or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part portion of its rights under this Agreement and its Note to a Federal Reserve Bank; provided, provided that no such assignment to a Federal Reserve Bank shall release the transferor Lender Bank from any of its obligations hereunder. For Upon written notice to the purposes Borrower and the Agent of this Section 8.07(aan assignment permitted by the provisos of the preceding sentence (which notice shall identify the assignee Bank, the amount of the assigning Bank’s Commitment and Loans assigned in detail reasonably satisfactory to the Agent) and upon the effectiveness of any assignment consented to by the Borrower and the Agent, the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the Borrower and the Agent), the terms obligations, rights and benefits of a Bank hereunder holding the Commitment and Loans (or portions thereof) assigned to it (in addition to the Commitment and Loans, if any, theretofore held by such assignee) and the assigning Bank shall, to the extent of such assignment, be released from the Commitment (or portions thereof) so assigned.
(c) A Bank may sell or agree to sell to one or more other Persons a participation in all or any part of any Loan held by it or Loans made or to be made by it, provided, however, so long as no Default has occurred and is continuing, the prior consent of the Borrower shall be obtained, which consent shall not be unreasonably withheld or delayed (provided, no consent of the Borrower shall be required for any participation to an affiliate of any Bank). A participant shall not have any rights or benefits under this Agreement or any Note (the participant’s rights against such Bank in respect or such participation to be those set forth in the agreement (the “Approved Fund” Participation Agreement”) executed by such Bank in favor of the participant). All amounts payable by the Borrower to any Bank under Section 4 hereof shall be determined as if such Bank had not sold or agreed to sell any participations in such Loan and “Ineligible Institution” as if such Bank were funding the portion of such Loan in which no participations have been sold. In no event shall a Bank that sells a participation be obligated to the following meanings:participant under the Participation Agreement to take or refrain from taking any action hereunder or under such Bank’s Note except that such Bank may agree in the Participation Agreement that it will not, without the consent of the participant, agree to (i) the increase or extension of the term, or the extension of the time or waiver of any requirement for the reduction or termination, of such Bank’s Commitment, (ii) the extension of any date fixed for the payment of principal of or interest on the related Loan or Loans or any fee (if the participant is entitled to any part thereof), (iii) the reduction of any payment of principal thereof, or (iv) the reduction of the rate at which either interest is payable thereon or (if the participant is entitled to any part thereof) commitment fee is payable hereunder to a level below the rate at which the participant is entitled to receive interest or a commitment fee (as the case may be) in respect of such participation.
(d) With the prior consent of the Borrower, which consent shall not be unreasonably withheld or delayed, a Bank may furnish any non-public information concerning the Borrower or any of its Subsidiaries in the possession of such Bank from time to time to actual or prospective assignees and participants (provided, no consent of the Borrower shall be required for any assignment or participation to an affiliate of any Bank); provided that such recipient shall agree in writing (naming the Borrower as a third party beneficiary thereof) with such Bank (on behalf of itself and each of its affiliates, directors, officers, employees and representatives) that (A) the information so furnished will not be used by it except in connection with this Agreement and (B) it shall use reasonable precautions, in accordance with its customary procedures for handling confidential information and in accordance with safe and sound banking practices, to keep such information confidential, provided that nothing in such agreement shall limit the disclosure of such information (i) to the extent required by statute, rule, regulation or judicial process, (ii) to its counsel or to counsel for any of the Banks or the Agent, (iii) to bank examiners, auditors or accountants or other professional advisors, (iv) to the Agent or any other Bank, (v) in connection with any litigation to which the Agent or any one or more of the Banks is a party or (vi) to the extent such information has become public (other than by its breach of such agreement).
Appears in 1 contract
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent so long as no Event ------------------------------ of the BorrowerDefault shall have occurred and be continuing, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.10 or 2.12) shall upon at least five Business Days' notice to such Lender and the extent required by such SectionAdministrative Agent, will assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more of the assigning Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender’s , an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender's rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment1 million, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one any Note or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant Notes subject to such Assignment and Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:assignment.
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Assignments and Participations. (a) Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of the Applicable Borrower, the Agents and the Lender Parties that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender maymay and, with the prior written consent of the Borrowerso long as no Default shall have occurred and be continuing, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Applicable Borrower (following a demand by such Lender pursuant to Section 8.07(g2.10 or 2.12) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAdministrative Agent, will, assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes, if any, held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of any or all Facilities, (ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than (A) $5,000,000 5,000,000, in the case of the Revolving Credit Facility and (B) $1,000,000, in the case of the Term B Facility, provided that simultaneous assignments among Affiliated Lenders or Approved Funds shall be aggregated for the purposes of determining such amount (or, if lessin each case, such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentApplicable Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Applicable Borrower pursuant to Section 2.10(e) shall be arranged by the Applicable Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Applicable Borrower pursuant to Section 2.10(e) unless and until such Lender shall have received one or more payments from either the Applicable Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) no such assignments shall be permitted without the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) until the Administrative Agent shall have notified the Lender Parties that syndication of the Commitments hereunder has been completed, (vii) no such assignment of a Revolving Credit Commitment shall be permitted without the consent of the Issuing Bank and the Swing Line Bank (in each case, such consent not to be unreasonably withheld or delayed), (viii) the parties to each such assignment shall (A) electronically execute and deliver to the Administrative AgentAgent an Assignment and Assumption via an electronic settlement system acceptable to the Administrative Agent (which initially shall be ClearPar, for its acceptance LLC) or (B) manually execute and recording in deliver to the Register, Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which unless such fee is waived at the discretion of the Administrative Agent), it being understood that no more than one such fee shall be payable by one or more of the parties to the Assignment in connection with simultaneous assignments among Affiliated Lenders and AssumptionApproved Funds, and not by (ix) the Borrower (except in the case of a demand under Section 8.07(g))assignee, and if it shall not be payable if the assignee is a Federal Reserve Bank)Lender, (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice deliver to the Administrative Agent within five an administrative questionnaire and all applicable tax documentation.
(5c) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Assumption, (xi) 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 Assumption, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (yii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all or of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(d) By executing and delivering an Assignment and Assumption, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (although i) such Lender Party warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that its Term B Commitment or Revolving Credit Commitment, as applicable, and the outstanding balances of its Term B Advances or Revolving Credit Advances, as applicable, in each case without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Assumption, (ii) except as set forth in (i) above, such Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of any Loan Document, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with this or any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Applicable Borrower or any Subsidiary of such Borrower or the performance or observance by the Applicable Borrower or any Subsidiary of such Borrower of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that it is legally authorized to enter into such Assignment and Assumption; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 4.01 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 Assumption; (v) such assignee will independently and without reliance upon the Agents, such assigning Lender or any other Lender Party 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; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to such Agent, respectively, by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender or Issuing Bank, as the case may be.
(e) The Administrative Agent, acting for this purpose (but only for this purpose) as the agent of the Applicable Borrower, shall maintain at its address referred to in Section 9.02 a copy of each Assignment and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lender Parties and the Commitment under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Applicable Borrower, the Agents and the Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Assumption executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment and an administrative questionnaire (including all applicable tax documentation) completed in respect of the assignee (unless the assignee shall continue already be a Lender hereunder), the processing and recordation fee referred to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(aparagraph (b) to above, if any, and, if required, the contrary, (A) the written consent of the Borrower Applicable Borrower, the Lender Party and the Administrative Agent to such assignment, the Administrative Agent shall not be required with respect (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the Applicable Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Applicable Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes (if any) a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Assumption and, if any assigning Lender that had a Note or Notes prior to such assignment has retained a Commitment hereunder under such Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be dated the effective date of such Assignment and Assumption and shall otherwise be in substantially the form of Exhibit A-1 or A-2 hereto, as the case may be. No assignment shall be effective unless it has been recorded in the Register as provided in this paragraph (f).
(g) The Issuing Bank may assign to an Affiliate Eligible Assignee all of such Lender or to another Lender or to an Approved Fund, its rights and (B) any Lender may obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption.
(h) Each Lender may without the consent of the Applicable Borrower, the other Lender Parties or the Administrative Agent sell participations to one or more banks or other entities in all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Advances owing to it and any LC Issuer Note or Notes held by it, if any); provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other entities shall be entitled to the benefit of the cost protection provisions contained in Sections 2.10 and 2.12 to the same extent as if they were Lenders (but, with respect to any particular participant, to no greater extent than the Lender that sold the participation to such participant and in the case of a participant organized in a jurisdiction outside of the United States, provided such participant complies with the provisions of Section 2.12(e) as if it were a Lender) and (iv) the Applicable Borrower, the Administrative Agent and the other Lender Parties shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and such Lender shall retain the sole right to enforce the obligations of the Applicable Borrower relating to the Advances or L/C Disbursements and to approve any amendment, modification or waiver of any provision of this Agreement (other than amendments, modifications or waivers decreasing any fees payable hereunder or the amount of principal of or the rate at which interest is payable on the Advances, extending any scheduled principal payment date or date fixed for the payment of interest on the Advances, increasing or extending the Commitments or releasing any Guarantor or all or substantially all of the Collateral).
(i) Any Lender Party or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Applicable Borrower furnished to such Lender Party by or on behalf of the Applicable Borrower; provided, however, that, prior to any such disclosure of information designated by the Applicable Borrower as confidential, each such assignee or participant or proposed assignee or participant shall execute an agreement whereby such assignee or participant shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential information on terms no less restrictive than those applicable to the Lenders pursuant to Section 9.10.
(j) Any Lender Party may (without the consent of the Applicable Borrower or the Administrative Agent, and without ) at any requirement to have an Assignment and Assumption executed, time assign all or any part portion of its rights under this Agreement to secure extensions of credit to such Lender Party or in support of obligations owed by such Lender Party (including, if such Lender Party is a Federal Reserve Bankfund that invests in bank loans, provided to a trustee for holders of obligations owed, or securities issued, by such fund); provided, however, that no such assignment shall release the transferor a Lender Party from any of its obligations hereunder. For hereunder or substitute any such assignee for such Lender Party as a party hereto and any foreclosure or exercise of remedies by such assignee or trustee shall be subject to the purposes provisions of this Section 8.07(a9.07 regarding assignments in all respects.
(k) Notwithstanding anything to the contrary contained herein, any Lender Party (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Applicable Borrower, the option to provide to the Applicable Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Applicable Borrower pursuant to this Agreement; provided, however, that (i) nothing herein shall constitute a commitment by any SPC to make any Advance and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms “Approved Fund” hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and “Ineligible Institution” have as if, such Advance were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the following meanings:Granting Lender). In furtherance of the foregoing, each par
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Assignments and Participations. (a) Each Lender may, with the prior written consent of Exelon, the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the a Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and it, its participation in Facility LCsLCs and any Note or Notes held by it); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and AssumptionAcceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))any Borrower, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower Exelon shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of Exelon, the Borrower LC Issuer and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of Exelon, the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption Acceptance executed, assign all or any part of its rights under this Agreement and any Note to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers 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.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Commitment Amount of, and principal amount of the Advances owing by each Borrower to, each Lender from time to time (the “Register”). For The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Administrative 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 any Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with all Notes, if any, subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it, its participation in Facility LCs and any Note or Notes held by it); provided that (i) such Lender’s obligations under this Agreement 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 Administrative 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 and (v) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement or any Note held by such Lender, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07(a8.07, 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 that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrowers received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If (i) any Lender shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Rate Advances or (iii) shall fail to consent to, or shall revoke its consent to, an extension of the scheduled Commitment Termination Date pursuant to Section 2.17, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the applicable Borrower), or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect), or (in the case of clause (iii)) no later than five days prior to the then effective scheduled Commitment Termination Date, as the case may be, the Borrowers may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrowers and reasonably acceptable to the Administrative Agent all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs within the next succeeding 30 days (in the case of clause (i) or clause (ii)), or within the next succeeding five days (in the case of clause (iii)). If any such Eligible Assignee designated by the Borrowers shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrowers shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrowers, the option to provide to any Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Advance, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms “Approved Fund” hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and “Ineligible Institution” have as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the following meanings:Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to the Granting Bank or to any financial institutions (consented to by such Borrower and Administrative Agent, neither of which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, upon notice to the Borrower and the Agent and (x) with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not to be unreasonably withheld withheld) and (y) unless an Event of Default has occurred and is continuing, with the consent of the Borrower (with the Borrower consent not to be unreasonably withheld, delayed or delayed)conditioned, and if demanded by provided that the Borrower pursuant shall be deemed to Section 8.07(g) have consented to any such assignment unless it shall object thereto by written notice to the extent required by such SectionAgent within five Business Days after having received notice thereof), assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances Term Loan and other amounts owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) except in the Commitment Amount case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Term Loan of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or10,000,000 (unless an Event of Default has occurred and is continuing, if less, the entire amount of such Lender’s Commitment, and shall be in which case not less than $5,000,000) or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof unless the Agent otherwise agrees, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, and the parties to such assignment (other than the Borrower and the Agent) shall deliver together with therewith any Note subject to such assignment and a processing and recordation fee of $3,500 (which except no such fee shall be payable by one or more of the parties for assignments to the Assignment and Assumptiona Lender, and not by the Borrower (except in the case an Affiliate of a demand under Section 8.07(g)Lender or an Approved Fund), and shall not be payable if the assignee is a Federal Reserve Bank), (v) any Lender may, without the consent approval of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultBorrower, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written but with notice to the Administrative Agent within five (5) Business Days after having received notice thereofBorrower, assign all or a portion of its rights and obligations to any of its Affiliates or to another Lender or an Approved Fund. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Section 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)hereto). Notwithstanding anything contained the foregoing, until the Delayed Draw Term Loan is made or the Delayed Draw Term Loan Commitment Termination Date has occurred without any Borrowing of the Delayed Draw Term Loan, under no circumstances shall a Lender assign or have the right to assign its Commitments in this Section 8.07(a) to respect of the contrary, (A) Delayed Draw Term Loans without the express written consent of the Borrower and the Administrative Agent shall not be required Agent.
(b) 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 assignment statements, warranties or representations made in or in connection with this Agreement or the other Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents 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 Loan Parties or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 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 and the other Loan 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 and discretion under this Agreement and the other Loan Documents as are delegated to the Agent by the terms hereof and thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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 B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in Section 8.02 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 principal amount of the Term Loan 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 Borrower, 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 Borrower or any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any timereasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may, without the consent of the Agent or any Loan Party, sell participations to one or more banks or other entities that constitute an Eligible Assignee in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan owing to it and any Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement 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 Borrower, 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 and (v) no participant under any LC Issuer such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Loan Document, or consent to any departure by the Administrative AgentBorrower therefrom, and without except to the extent that such amendment, waiver or consent would require the affirmative vote of the Lender from which it purchased its participation pursuant to Section 8.01(a).
(f) Any Lender may, in connection with any requirement assignment or participation or proposed assignment or participation pursuant to have an Assignment and Assumption executedthis Section 8.07, assign disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower or its Subsidiaries furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Borrower Information relating to the Borrower or its Subsidiaries received by it from such Lender in accordance with Section 8.08.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any part portion of its rights under this Agreement (including the Term Loan owing to a it and any Notes held by it), including, without limitation, in favor of any Federal Reserve BankBank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(h) The Borrower, provided that no such assignment upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender to facilitate transactions of the type described in paragraph (g) above.
(i) The Borrower shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” not have the following meanings:right to assign its rights hereunder or any interest herein without the prior written consent of each of the Lenders.
Appears in 1 contract
Sources: Credit Agreement (Sears Canada Inc.)
Assignments and Participations. (a) Each The Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent Borrower (which consents shall not be unreasonably withheld or delayedwithheld), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of the Commitment, the Advances and the Note); PROVIDED, however, that no such consent by the Borrower shall be required in the case of any assignment to an Affiliate of the Lender; and PROVIDED, FURTHER, that any such partial assignment shall be in an amount at least equal to $5,000,000 or in an integral multiple of $1,000,000 in excess thereof.
(b) The Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note); provided PROVIDED, HOWEVER, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its 's obligations under this Agreement and(including, without limitation, its Commitment hereunder) shall remain unchanged.
(c) The Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 7.05, disclose to the case assignee or participant or proposed assignee or participant, any information relating to the Borrower or any of an Assignment and Assumption covering all its Subsidiaries furnished to the Lender by or on behalf of the remaining portion of an assigning Lender’s rights and obligations under Borrower. Credit Agreement ----------------
(d) Notwithstanding any other provision set forth in this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement to a (including, without limitation, the Advances and the Note) in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Board of Governors of the Federal Reserve System.
(e) All amounts payable by the Borrower to the Lender from any of its obligations hereunder. For the purposes of this Section 8.07(aunder Sections 2.08(e), 2.10, 2.11, 2.12 and 7.04(b) shall be determined as if the terms “Approved Fund” Lender had not sold or agreed to sell any participations in the Advances or the Note or its Commitment and “Ineligible Institution” as if the Lender were funding each of such Advances and Commitment in the same way that it is funding the portion of such Advances and Commitment in which no participations have the following meanings:been sold.
Appears in 1 contract
Sources: Credit Agreement (M&t Bank Corp)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances Loans owing to it and its participation in Facility LCsthe Note or Notes held by it); provided that provided, however, that:
(i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, Agreement (other than any Competitive Bid Loans or any Swing Loans),
(ii) the Commitment Amount amount of the Commitments of the assigning Lender being assigned pursuant to each such assignment other than an assignment to MARRIOTT CREDIT AGREEMENT another Lender (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, in excess thereof,
(iii) each such assignment shall be to an Eligible Assignee, and (unless such assignment shall be to a Subsidiary of the assigning Lender or to a Subsidiary of the bank holding company of which the assigning Lender is a Subsidiary) the Company, the Administrative Agent, the Issuing Banks and the Swing Loan Banks shall have consented to such assignment (which consents shall not be unreasonably withheld or delayed),
(iv) after giving effect to such assignment, the assigning Lender (together with all Affiliates of such Lender) shall continue to hold no less than 25% of its original Commitments hereunder and of the Loans owing to it, unless the Company shall otherwise agree,
(v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption3,500, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and and
(vi) unless the Borrower Company and the Administrative Agent otherwise agree, the Termination Date of the assignee under each such assignment shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to be the Administrative Agent within five (5) Business Days after having received notice thereofthen Final Termination Date. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shallshall relinquish its rights and be released from its obligations under this Agreement, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance. Notwithstanding anything to the contrary contained herein except for the conditions set for in clause (iv) of this Section 9.07(a), relinquish any Bank (a “Granting Bank”) may grant to a special purpose funding vehicle (a “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of a Loan that such Granting Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Loan were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto MARRIOTT CREDIT AGREEMENT hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 9.07 except for the conditions set forth in clause (iii) of this Section 9.07(a), any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its rights interests in any Loans to the Granting Bank or to any Eligible Assignee (consented to by the Borrower and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This section may not be released from amended without the written consent of the SPC.
(b) 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement andor any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.01 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 Administrative 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers 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.
(c) Each New Lender shall submit a New Commitment Acceptance in accordance with the provisions of Section 2.06(b). Upon the execution, delivery, acceptance and recording of a New Commitment Acceptance, from and after the Increase Date related thereto such New Lender shall be a party hereto and have the rights and obligations of a MARRIOTT CREDIT AGREEMENT Lender hereunder having the Commitment specified therein (or such lesser Commitment as shall be allocated to such New Lender in accordance with Section 2.06(b)(vi) or 2.15(d)). By executing and delivering a New Commitment Acceptance, the New Lender thereunder confirms to and agrees with the other parties hereto as follows: (i) such New Lender hereby agrees that no Lender has made any representation or warranty, or assumes any responsibility with respect to, (x) any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto or (y) the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (ii) such New Lender confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such New Commitment Acceptance; (iii) such New Lender will, independently and without reliance upon any 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 Agreement; (iv) such New Lender confirms that it is an Eligible Assignee; (v) such New Lender appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such New Lender 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 Administrative Agent shall maintain at its address referred to in Section 9.02 a copy of each Assignment and Acceptance and each New Commitment delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitments of, and principal amount of the Loans owing to, each Lender from time to time (the “Register”). The entries in the case Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Administrative 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 Company or any Lender at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall provide the Company with a copy of the Register upon request.
(i) Upon its receipt of an Assignment and Assumption covering all Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Loan Note or Notes subject to such assignment, the remaining Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C-1 hereto, (1) accept such Assignment and Acceptance, (2) record the information contained therein in the Register and (3) give prompt notice thereof to the Company. Within five Business Days after its receipt of such notice, the relevant Borrower, at its own expense, shall execute and deliver to the Administrative MARRIOTT CREDIT AGREEMENT Agent in exchange for the surrendered Revolving Loan Note or Notes a new Revolving Loan Note to the order of such Eligible Assignee in an amount equal to the Commitments assumed by it pursuant to such Assignment and Acceptance and a new Revolving Loan Note to the order of the assigning Lender in an amount equal to the Commitments retained by it hereunder. Such new Revolving Loan Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Loan Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A-l hereto. Such surrendered Revolving Loan Note or Notes shall be marked “canceled” and shall be returned promptly to the Company.
(ii) Upon its receipt of a New Commitment Acceptance executed by a New Lender representing that it is an Eligible Assignee, the Administrative Agent shall, if such New Commitment Acceptance has been completed and is in substantially the form of Exhibit C-3 hereto, (1) accept such New Commitment Acceptance, (2) record the information contained therein in the Register and (3) give prompt notice thereof to the Company. Within five Business Days after its receipt of such notice, the relevant Borrower, at its own expense, shall execute and deliver to the Administrative Agent a new Revolving Loan Note to the order of such New Lender in an amount equal to the Commitments assumed by it pursuant to such New Commitment Acceptance. Such new Revolving Loan Note shall be dated the relevant Increase Date and shall otherwise be in substantially the form of Exhibit A-l hereto.
(f) Each Lender may sell participations to one or more banks or other entities in or to a portion of an assigning its rights and obligations under this Agreement (including, without limitation, a portion of its Commitments, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitments hereunder) 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 Administrative Agent, the Issuing Banks 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, such (v) except in the case of a participation involving a Lender and one of its Affiliates (and this exception shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to apply only so long as the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to participant remains an Affiliate of such Lender or Lender), the parties to another Lender or to an Approved Fundeach such participation shall execute a participation agreement in substantially the form of the Participation Agreement, and (Bvi) no participant under any such participation shall have any right to approve any amendment to or waiver of any provision of any Loan Document, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would alter the principal of, or interest on, the Loan or Loans in which such participant is participating or any fees or other amounts payable to the Lenders hereunder, or postpone any date fixed for any payment of principal of, or interest on, the Loans or any fees or other amounts payable hereunder. Each Lender shall provide the Company with a list of entities party to all Participation Agreements with such Lender upon request.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information, including Confidential Information, relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided that, prior to any such disclosure of Confidential Information, the assignee or participant or proposed assignee or participant shall be informed of the confidential nature of such Confidential Information and shall agree to (i) preserve the confidentiality of any Confidential Information relating to the Borrowers received by it from such Lender and (ii) be bound by the provisions of Section 9.11.
(h) Notwithstanding any other provision in this Section 9.07, no Lender may assign its interest to an Eligible Assignee if, as of the effective date of such assignment, such assignment would increase the amount of Taxes, Other Taxes or increased costs payable under Sections 2.12 or 3.05, respectively.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, time and without the consent of the Borrower, Administrative Agent or any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign Borrower create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Loans owing to a it and the Notes held by it) in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Lender from any Board of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Gove
Appears in 1 contract
Assignments and Participations. (a) Each This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Swing Line Lender, the Issuing Bank, the Administrative Agent, and their respective successors and assigns, except that neither the Parent nor the Borrowers may assign, delegate or transfer any of their rights or obligations under the Loan Documents without the prior written consent of the Administrative Agent, the Issuing Bank, the Swing Line Lender mayand each Lender. - 120 - 127 (b) Except as provided in Section 11.1(b), each Lender shall have the right at any time, upon written notice to the Administrative Agent of its intent to do so, to sell, assign, transfer or negotiate all or any part of such Lender's rights and obligations under the Loan Documents to one or more of its affiliates, to one or more of the other Lenders (or to affiliates of such other Lenders) or, with the prior written consent of the BorrowerParent, each LC Issuer the Swing Line Lender and the Administrative Agent Issuing Bank (which consents shall not be unreasonably withheld or delayedwithheld), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Sectionsell, assign to one assign, transfer or more banks or other entities (other than an Ineligible Institution) negotiate all or a portion any part of its such Lender's rights and obligations under this Agreement (including all the Loan Documents to any other bank, insurance company, pension fund, mutual fund or a portion of its Commitmentother financial institution, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment sale, assignment, transfer or negotiation (other than sales, assignments, transfers or negotiations (x) to affiliates of such Lender or (y) of a Lender's entire interest) shall be in a minimum amount of a constant$5,000,000, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) there shall be paid to the Commitment Amount of Administrative Agent by the assigning or assignee Lender being assigned pursuant to each such assignment a fee (determined as of the date of the "Assignment and Assumption with respect to such assignmentFee") shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment3,000. For each assignment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofAcceptance Agreement. Upon such execution, delivery, acceptance and recordingrecording by the Administrative Agent, from and after the effective date specified in each such Assignment and AssumptionAcceptance Agreement, (x) 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 AssumptionAcceptance Agreement, have the rights and obligations of a assignor Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and shall be released from its obligations under this Agreement andthe Loan Documents. Upon any such sale, assignment or other transfer, the Commitments and the Commitment Percentages set forth in Exhibit A-1, and the case of an Assignment and Assumption covering all or the remaining portion of an assigning Lender’s rights and obligations under this AgreementIndividual Currency Commitments set forth in Exhibit A-2, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and adjusted accordingly by the Administrative Agent and a new Exhibit A-1 and a new Exhibit A-2 shall not be required with respect to any assignment distributed by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, Agent to the Parent (on behalf of all Borrowers) and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:each Lender.
Appears in 1 contract
Sources: Credit Agreement (Tiffany & Co)
Assignments and Participations. (a) Each Lender may, upon notice to the Borrowers and the Agent and with the prior written consent of the Borrowerconsent, each LC Issuer and the Administrative Agent (which consents shall not to be unreasonably withheld or delayed), and if demanded by of the Borrower pursuant to Section 8.07(g) shall to the extent required by such SectionAgent, assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Commitment, the Advances Term Loan and other amounts owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, that (i) each such assignment the Borrowers’ consent shall be required for any assignment to a customer or operating competitor of any Loan Party (so long as, in the case of any such competitor, the Borrowers have notified the Agent in writing that such proposed assignee is an operating competitor of a constantLoan Party), and not such Lender shall give the Borrowers advance written notice of such proposed assignment no less than three (3) days prior to the closing of such assignment, (ii) except in the case of an assignment to a varyingPerson that, percentage immediately prior to such assignment, was a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of all of the assigning a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount amount of the Term Loan and Term Commitments of the assigning Term Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if less, the entire outstanding amount of the Term Loan held by such Term Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment) unless the Agent otherwise agrees, (iiiiv) each such assignment shall be to an Eligible Assignee, (ivv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, and the parties to such assignment (other than the Agent) shall deliver together with therewith any Note subject to such assignment and a processing and recordation fee of $3,500 (which except no such fee shall be payable by one or more of the parties for assignments to the Assignment and Assumptiona Lender, and not by the Borrower (except in the case an Affiliate of a demand under Section 8.07(g)Lender or an Approved Fund), and shall not be payable if (vii) any Lender may, without the assignee is a Federal Reserve Bank), (v) the consent approval of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultBorrowers, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written but with notice to the Administrative Agent within five Borrowers, assign all or a portion of its rights and obligations to any of its Affiliates (5other than a natural person) Business Days after having received notice thereofor to another Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Section 2.09, 2.12 and 9.04 to the extent any claim thereunder relates to an event arising prior such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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 hereto).
(although an assigning b) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained effective unless and until, in this Section 8.07(a) addition to the contraryother conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (A) which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent, or any Lender hereunder (and interest accrued thereon). Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the Administrative Agent shall not be required 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 assignment statements, warranties or representations made in or in connection with this Agreement or the other Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents 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 Loan Parties or the performance or observance by the Borrowers of any Lender of their obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to an Affiliate of in Section 5.01(e) 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 another Lender make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to an Approved Fundtake such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (Bvii) any Lender may at any time, without the consent such assignee agrees that it will perform in accordance with their terms all of the Borrower, any LC Issuer or obligations that by the Administrative Agent, and without any requirement terms of this Agreement are required to have be performed by it as a Lender.
(d) Upon its receipt of an Assignment and Assumption executedAcceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, assign all together with any Note or any part of its rights under this Agreement Notes subject to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a)assignment, the terms “Approved Fund” Agent shall, if such Assignment and “Ineligible Institution” have Acceptance has been completed and is in substantially the following meanings:form of Exhibit B 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.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the prior written consent of (x) the Borrower (A) prior to the funding of the Advances on the Closing Date, in the Borrower, each LC Issuer and ’s sole discretion (provided that such consent shall be deemed to have been given with respect to any Person identified to the Administrative Agent in writing by the Borrower prior to the Effective Date (the “Pre-Approved Lenders”)) and (B) after the funding of the Advances on the Closing Date, such consent not to be unreasonably withheld, and (y) the Administrative Agent, which consents consent shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities Persons (other than an Ineligible Institutionnatural persons) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided, that (A) after the funding of the Advances on the Closing Date, the consent of the Borrower shall not be required while an Event of Default has occurred and is continuing, (B) the consent of the Borrower shall be deemed given if the Borrower shall not have objected within 10 Business Days following its receipt of written notice of such proposed assignment, and (C) in the case of an assignment to any other Lender or an Affiliate of any Lender, no such consent shall be required from (x) the Administrative Agent, (y) the Borrower with respect to assignments by any Lender to its Affiliate or to another Lender, or (z) the Borrower if (1) the funding of the Advances on the Closing Date has occurred or (2) a Certain Funds Default has occurred and is continuing, provided that in each such case notice thereof shall have been given to the Borrower and the Administrative Agent.
(ib) Upon demand by the Borrower (with a copy of such demand to the Administrative Agent) (w) any Defaulting Lender, (x) any Lender that has made a demand for payment pursuant to Section 2.11 or 2.14, (y) any Lender that has asserted pursuant to Section 2.08(b) or 2.12 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (z) any Lender that fails to consent to an amendment or waiver hereunder for which consent of all Lenders (or all affected Lenders) is required and as to which the Required Lenders shall have given their consent, will assign to one or more Persons designated by the Borrower all of its rights and obligations under this Agreement (including, without limitation, all of its Commitment and the Advances owing to it).
(c) In each such case,
(A) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(B) except in the case of the assigning 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 AgreementAgreement associated with a particular Class, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 10,000,000 or an integral multiple of $1,000,000 in excess thereof (or such Lenderat the Borrower’s entire Commitmentoption, the Sterling Equivalents of $10,000,000 and $1,000,000, respectively);
(iiiC) [Reserved];
(D) each such assignment made as a result of a demand by the Borrower pursuant to Section 9.07(b) shall be arranged by the Borrower with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement;
(E) no Lender shall be obligated to an Eligible Assigneemake any such assignment as a result of a demand by the Borrower pursuant to Section 9.07(b), (iv1) so long as a Default shall have occurred and be continuing and (2) unless and until such Lender shall have received one or more payments from one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount, and from the Borrower or one or more assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.11, 2.14 or 9.04(c)) and (3) unless and until the Borrower shall have paid (or caused to be paid) to the Administrative Agent a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and
(F) the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to Section 9.07(b), the Borrower) shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance and, together with if such assignment does not occur as a result of a demand by the Borrower pursuant to Section 9.07(b) (in which case the Borrower shall pay the fee required by subclause (E)(3) of Section 9.07(c)), a processing and recordation fee of $3,500 (which shall be payable by one or more of 3,500; provided, however, that the parties Administrative Agent may, in its sole discretion, elect to the Assignment waive such processing and Assumption, and not by the Borrower (except recordation fee in the case of any assignment. The assignee, if it is not a demand under Section 8.07(g))Lender, and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice deliver to the Administrative Agent within five an Administrative Questionnaire.
(5d) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Sections 9.04(a) and (b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and, in the case of an Assignment and Assumption 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).
(e) 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:
(although 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 any 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) [Reserved];
(vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(g) The Administrative Agent, acting solely for this purpose as the agent of the Borrower, shall maintain at its address referred to in Section 9.02(a) 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 Commitment of, and principal amount (and stated interest) of the Advances 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 Borrower, the Agents and the Lenders shall 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 Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Each Lender may sell participations to one or more banks or other entities (other than the Borrower or any of its Affiliates or any natural person) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) without the consent of the Administrative Agent or the Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its 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 Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, the Agents and the other Lenders shall continue to be entitled 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 indemnification approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or therefrom, except as to matters requiring the approval of all the Lenders pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a9.01; and
(vi) prior to the contraryfunding of the Advances on the Closing Date, (A) no Lender may sell participations except with the consent of the Borrower in its sole discretion. Each Lender shall promptly notify the Borrower after any sale of a participation by such Lender pursuant to this Section 9.07(h); provided that the failure of such Lender to give notice to the Borrower as provided herein shall not affect the validity of such participation or impose any obligations on such Lender or the applicable participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall not be required have no responsibility for maintaining a Participant Register.
(i) Any Lender may, in connection with respect any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any assignment such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information relating to the Borrower received by any Lender to an Affiliate of it from such Lender or to another Lender or to an Approved Fundas more fully set forth in Section 9.08.
(j) Notwithstanding any other provision set forth in this Agreement, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation and the Advances owing to a it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank, provided that no Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Lender.
Appears in 1 contract
Assignments and Participations. (a) Each Lender mayBank may assign, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (which consents which, in either case, shall not be unreasonably withheld or delayedand in the case of the Borrower shall not be required during the continuation of an Event of Default), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks banks, financial institutions or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations as a Bank under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its Commitmentcommitments, the Advances hereinafter owing to it and the Notes held by it and its participation in Facility LCsreimbursement obligations of the Borrower in respect of Letters of Credit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, the same percentage of all of the assigning Lender’s Bank's rights and obligations under this Agreementthe Loan Documents, (ii) the Commitment Amount amount of the commitments, if any, of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment5,000,000, and shall be an integral multiple of $1,000,000 in excess thereof, or the remaining amount of such Lender’s entire CommitmentBank's commitments hereunder, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Notes subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption3,000; provided further that each Bank may, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) without the consent of the Borrower or the Agent, assign, as collateral or otherwise, any of its rights under this Agreement and the other Loan Documents (including, without limitation, the right to payment of principal and interest under the Notes) to any Federal Reserve Bank, and such assignment of rights to the Federal Reserve Bank shall not be required after subject to the occurrence conditions and during restrictions set forth in items (i) through (iv) of the continuance immediately foregoing proviso; and provided further that each Bank may, without the consent of any Event of Default, and (vibut with prior written notice to) the Borrower shall be deemed to have consented or the Agent, assign, in whole or in part, any of its rights and obligations under this Agreement and the other Loan Documents to any of its Affiliates, and such assignment unless it to Affiliates shall object thereto by written notice not be subject to the Administrative Agent within five conditions and restrictions set forth in items (5i) Business Days after having received notice thereofthrough (iv) of the proviso above. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it pursuant to such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender Bank hereunder and thereunder and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder under the Loan Documents have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement the Loan Documents (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s Bank's rights and obligations under this Agreementthe Loan Documents, such Lender Bank shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Bank assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue Bank makes no representation or warranty and assumes no responsibility with respect to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) any statements, warranties or representations made in or in connection with any Loan Document, (B) the consent due execution, legality, validity, enforceability, genuineness or sufficiency of any Loan Document or any other instrument or document furnished pursuant thereto, (C) the Borrower value of any Collateral, or (D) the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Bank makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to the financial condition of any assignment Loan Party or the performance or observance by any Lender to an Affiliate Loan Party of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunderunder any Loan Document or any other instrument or document furnished pursuant hereto or thereto; (iii) such assignee confirms that it has received a copy of each of the Loan Documents, together with copies of the 74 financial statements referred to in Section 5.01(e) 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, any Issuing Bank, such assigning Bank or any other 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 or any other Loan Document; (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 the other Loan Documents as are delegated to the Agent by the terms hereof and thereof, together with such powers 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 the Loan Documents are required to be performed by it as a Bank.
(c) The Agent shall maintain at its address referred to in Section 9.02 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 Banks and the Commitment and principal amount of the Advances owing to, each Bank from time to time (the "Register"). For The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Section 8.07(aAgreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee representing that it is an Eligible Assignee, together with any Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its 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 an aggregate principal amount equal to the principal amount of Advances owed to it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained any principal amount of the obligations owed to it hereunder, new Notes to the order of the assigning Bank in an aggregate principal amount equal to such principal amount. Such new Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Notes, shall be dated the effective date of such Assignment and Acceptance, shall consist of Notes payable to the order of such Eligible Assignee and, if the assigning Bank has retained ownership of any Advances owed to it hereunder, the assigning Bank in the appropriate principal amounts, and shall otherwise be in substantially the forms required by this Agreement.
(e) Each Bank may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under the Loan Documents (including, without limitation, all or a portion of its commitments, the Notes held by it and reimbursement obligations of the Borrower in respect of Letters of Credit); provided, however, that (i) such Bank's obligations under the Loan Documents (including, without limitation, its commitments to the Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of any such Notes for all purposes of the Loan Documents, and (iv) the Borrower, the Agent, each Issuing Bank and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under the Loan Documents; provided further that, to the extent of any such participation (unless otherwise stated therein and subject to the preceding proviso), the terms “Approved Fund” and “Ineligible Institution” assignee or purchaser of such participation shall, to the fullest extent permitted by law, have the following meanings:same rights and benefits hereunder as it would have if it were a Bank hereunder; and provided further that each such participation shall be granted pursuant to an agreement providing that the purchaser thereof shall not have the right to consent or object to any action by the selling Bank (who shall retain such right) other than an action which would (i) reduce principal of or interest on any Advance or fees in which such purchaser has an interest or (ii) postpone any date fixed for payment of principal of or interest on any such Advance or such fees.
(f) The Borrower agrees that any Bank purchasing a participation from another Bank pursuant to Section 2.14 or 9.08(e) may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Bank were the direct creditor of the Borrower in the amount of such participation.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the prior written consent and so long as no Event of the BorrowerDefault shall have occurred and be continuing, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed)shall, and if demanded following a demand made by the Borrower pursuant to Section 8.07(g4.05(d) shall upon at least five Business Days’ written notice from the Borrower to such Lender and the extent required by such SectionAdministrative Agent, assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances owing to it and the Note or Notes held by it and its participation in Facility LCsRevolving Credit-Linked Deposit Amounts); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, and in respect of the Facilities; (ii) the Commitment Amount aggregate amount of the assigning Lender Term Advances or Revolving Credit-Linked Deposit Amounts being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 1,000,000 and shall be an integral multiple of $1,000,000 thereof (or such Lender’s entire Commitmentlesser amount as may be approved by the Administrative Agent), provided, that for purposes of this Section 11.07(a)(ii), the Term Advances and Revolving Credit-Linked Deposit Amounts held by Affiliates and related Approved Funds may be aggregated; (iii) each such assignment shall be to an Eligible Assignee, ; (iv) each such assignment made as a result of a demand by the Borrower pursuant to Section 4.05(d) shall be arranged by the Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement; (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to Section 4.05(d) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender and its Revolving Credit-Linked Deposits, together with accrued interest or return thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement; (vi) no such assignments shall be permitted without the consent of the Administrative Agent until the Administrative Agent shall have notified the Lenders that syndication of the Commitments hereunder has been completed; and (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in via an electronic settlement system acceptable to the RegisterAdministrative Agent (or, an Assignment and Assumptionif previously agreed with the Administrative Agent, together with manually), shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which shall fee may be payable by one waived or more reduced in the sole discretion of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)Administrative Agent), and shall not be payable if deliver to the assignee is a Federal Reserve Bank), (v) Administrative Agent any Notes subject to such assignment. Without the consent of the Borrower and the Administrative Agent, the Revolving Credit-Linked Deposits of any Lender shall not be required after released in connection with any assignment by such Lender, but shall instead be purchased by the occurrence relevant assignee and during continue to be held for application (to the continuance extent not already applied) in accordance with Section 3.01 to satisfy such assignee’s obligations in respect of any Event Revolving Advances and participation in Letters of Default, and (vi) the Borrower shall be deemed Credit. Each Lender agrees that immediately prior to have consented to any such assignment unless it shall object thereto by written notice to (x) the Administrative Agent within five shall establish a new Revolving Credit-Linked Deposit Account in the name of such assignee, (5y) Business Days unless otherwise consented by the Administrative Agent, a corresponding portion of the amount on deposit in the Revolving-Credit Linked Deposit Account of the assignor Lender shall be purchased by the assignee and shall be transferred from the assignor’s Revolving Credit-Linked Deposit Account to the assignee’s Revolving Credit-Linked Deposit Account and (z) if after having received notice thereof. giving effect to such an assignment the aggregate amount of the Revolving Credit-Linked Deposit Account of the assignor Lender shall be $0, the Administrative Agent shall close the Revolving Credit-Linked Deposit Account of such assignor Lender.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AssumptionAcceptance, (xi) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (yii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 4.05, 4.07 and 11.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or of 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, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any 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, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan 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 Section 6.01 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 any 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 each 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 such Agent by the terms hereof and thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender, as the case may be.
(d) The Administrative Agent, acting for this purpose (but only for this purpose) as the agent of the Borrower, shall maintain at its address referred to in Section 11.02 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 Commitments of, and principal amount of the Advances owing to, and the Revolving Credit-Linked Deposit of, each Lender from time to time (the “Register”). The entries in the Register shall be presumptive evidence for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall 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 Borrower 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 (if any) subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. In the case of any assignment by any Lender to an Affiliate a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes (if any) a new Note to the order of such Eligible Assignee in an amount equal to the relevant Commitment assumed by it pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Note or Notes prior to such assignment has retained a Commitment hereunder, a new Note to the order of such assigning Lender in an amount equal to the relevant Commitment retained by it hereunder. Such new Note or Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
(f) [Reserved].
(g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to another all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it and its Revolving Credit-Linked Deposit Amount); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitments) 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 Borrower, the Agents 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 and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to an Approved Fundany departure by any Loan Party therefrom, and except to the extent that such amendment, waiver or consent (A) would reduce the principal of, or interest on, the Advances (except Default Interest) or any fees, call premiums or other amounts payable hereunder, in each case to the extent subject to such participation, (B) postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees, call premiums or other amounts payable hereunder, in each case to the extent subject to such participation, or (C) release all or substantially all of the value of the Guaranties (except to the extent otherwise permitted herein).
(h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 11.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; 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 and be bound by the terms of the confidentiality provisions contained in Section 11.10.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any timetime create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the consent Advances owing to it and the Note or Notes (if any) held by it and its Revolving Credit-Linked Deposit Amount) in favor of any Federal Reserve Bank in accordance with Regulation A of the BorrowerBoard of Governors of the Federal Reserve System.
(j) Notwithstanding anything to the contrary contained herein, any LC Issuer Lender that is a Fund may create a security interest in all or any portion of the Advances owing to it and any Note or Notes held by it and its Revolving Credit-Linked Deposit Amount to any creditor of or the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that, unless and until such creditor or trustee actually becomes a Lender in compliance with the other provisions of this Section 11.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.
(k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of any Advance or any Revolving Credit-Linked Deposit Amount that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Advance or any Revolving Credit-Linked Deposit Amount and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Advance or such Revolving Credit-Linked Deposit Amount, the Granting Lender shall be obligated to make such Advance or such Revolving Credit-Linked Deposit Amount pursuant to the terms hereof. The making of an Advance or such Revolving Credit-Linked Deposit Amount by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance or such Revolving Credit-Linked Deposit Amount were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 4.05 and 4.07 (or any other increased costs protection provision) and (iii) the Granting Lender shall for all purposes, including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, the Borrower and the Administrative Agent, and without paying any requirement to have an Assignment and Assumption executedprocessing fee therefor, assign all or any portion of its interest in any Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no whose Advances are being funded by the SPC at the time of such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:amendment.
Appears in 1 contract
Assignments and Participations. (a) Each Lender maymay (and, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to in accordance with Section 8.07(g2.10(e) shall to the extent required by such Section, or 9.01(b) will) assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more of the assigning Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or a Fund Affiliate of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be under each Facility or an integral multiple of $1,000,000 in excess thereof (or such Lender’s entire Commitmentlesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to Section 2.10(e) or 9.01(b) shall be an assignment of all rights and obligations of the assigning Lender under this Agreement, (v) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or a Fund Affiliate of any Lender and so long as no Default shall have occurred and be continuing, each assignment shall be made with the consent of the Borrower, which consent shall not be unreasonably withheld or delayed, (vi) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or a Fund Affiliate of any Lender, which assignment shall not require the consent of the Administrative Agent, no such assignments shall be permitted at any time without the consent of the Administrative Agent (which consent shall not be unreasonably withheld), and (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and, except if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of $3,500 (which shall be payable by one or more 3,500; provided, however, that for each such assignment made as a result of the parties to the Assignment and Assumption, and not a demand by the Borrower (except in the case of a demand under pursuant to Section 8.07(g)2.10(e) or 9.01(b), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice pay to the Administrative Agent within five the applicable processing and recordation fee.
(5b) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AssumptionAcceptance, (xi) 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 AssumptionAcceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (yii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12, 7.06, 8.05 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower Party makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with any 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, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Lender to an Affiliate Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such Lender or to another Lender or to an Approved Fundassignee confirms that it has received a copy of this Agreement, and (B) any Lender may at any time, without the consent together with copies of the Borrowerfinancial statements referred to in Section 4.01 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, any LC Issuer or independently and without reliance upon the Administrative Agent, such assigning Lender Party or any other Lender Party and without 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 Administrative 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 Administrative Agent by the terms hereof and thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to in Section 9.02 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 Lender Parties and the Commitment under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or the Administrative Agent or any requirement Lender Party at any reasonable time and from time to have time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Assumption executedAcceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit D hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall, if requested by the applicable Lender, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes, if any, 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 form of Exhibit A hereto.
(f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank 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 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided that such fee shall not be payable if the assigning Issuing Bank is making such assignment simultaneously with the assignment in its capacity as a Lender of all or a portion of its Revolving Credit Commitment to the same Eligible Assignee.
(g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such Lender Party’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 Loan Document, or any consent to any departure by any Loan Party 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, or 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) if, at the time of such sale, such Lender Party was entitled to payments under Section 2.12(a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to such participant on such date; provided that such participant complies with the requirements of Section 2.12(e).
(h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time pledge or assign a security interest in all or any part portion of its rights under this Agreement to secure obligations of such Lender Party, including any pledge or assignment to secure obligations to a Federal Reserve Bank, provided that no such pledge or assignment shall release the transferor such Lender Party from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:hereunder or substitute any such pledgee or assignee for such Lender Party as a party hereto.
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Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment shall be of a constant, and not a varying, percentage of all of the assigning a Lender’s 's rights and obligations under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, (or $2,500,000 in the entire amount case of an assignment by a Lender to an Affiliate of such Lender’s Commitment), and (ii) no such assignments shall be an integral multiple permitted without the prior consent of $1,000,000 or such Lender’s entire Commitmentthe Administrative Agent (which may be withheld for any reason) until the Administrative Agent shall have notified the Lender Parties that syndication of the Commitments hereunder has been completed, but in any event not later than 90 days following the Closing Date, (iii) each no such assignment shall be permitted if, immediately after giving effect thereto, the Borrower would be required to an Eligible Assigneemake payments to or on behalf of the assignee Lender Party pursuant to Section 2.10(a) or (b) or 2.12 and the assignor Lender Party was not, at the time of such assignment, entitled to receive any payment pursuant to Section 2.10(a) or (b) or 2.12, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 (other that with respect to an assignment to a Lender's Affiliate, in which event such fee shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower $1,500).
(except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (vb) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (y) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). 132 125
(c) By executing and delivering an Assignment and Acceptance, the Lender Party assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (although i) other than as provided in such Assignment and Acceptance, such assigning Lender Party 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 Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan 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 Section 4.6 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 Administrative Agent, such assigning Lender Party or any other Lender Party 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms hereof and thereof, 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 or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to in Section 11.2 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 Lender Parties and the Commitment under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender Party 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 Party and an assignee, together with any Note or Notes subject to such assignment and the appropriate processing and reconciliation fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A hereto, (i) accept 133 126 such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. In the case of any assignment by a Lender, within ten (10) Business Days after its receipt of such notice and the return of the old Notes (or a customary indemnity with respect to any lost Notes), the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under a Facility pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of the assigning Lender in an amount equal to the Commitment 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 form of Exhibit B, C or D hereto, as the case may be.
(f) Each Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes, if any, held by it); provided, however, that (i) such Lender Party's obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lender Parties shall continue to be entitled deal solely and directly with such Lender Party in connection with such Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to indemnification approve any amendment, waiver or other modification of any provision of this Agreement or any other Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver, modification or consent would reduce the rate of interest or extend the final scheduled maturity of any Advance or Note, or the date for payment of any fees or other interest on any Advance, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on any Advance, or reduce the principal amount thereof, in each case to the extent subject to such participation, or release all or substantially all of the Collateral (except as expressly provided in the Collateral Documents) under all of the Collateral Documents.
(h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.04(c)). 11.7, disclose to the assignee or 134 127 participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender Party in accordance with the terms set forth in Section 11.10.
(i) Notwithstanding anything contained any other provision set forth in this Section 8.07(aAgreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and the Note or Notes held by it) to in favor of any Federal Reserve Bank in accordance with Regulation A of the contraryBoard of Governors of the Federal Reserve System without notice to, (A) or the consent of, the Borrower or the Administrative Agent and, with the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by Agent, any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender which is a fund may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign pledge all or any part portion of Advances owing to it or the Note or Notes held by it to its trustee in support of its rights under this Agreement obligations to a Federal Reserve Bankits trustee. No such pledge, provided that no such assignment or creation of security interest shall release the transferor Lender from any of its obligations hereunder. For the purposes of under this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Agreement.
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Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrowerso long as no Default shall have occurred and be continuing, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall 9.14 upon at least five Business Days' notice to such Lender and the extent required by such SectionAdministrative Agent, will assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of all of the assigning Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender’s , an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender's rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignmentassignment and treating related Approved Funds as one assignee for this purpose) shall in no event be less than $1,000,000 in the case of any of the Term Facilities or $5,000,000 in the case of the Revolving Credit Facility (or, if lessin each case, the entire such lesser amount of such Lender’s Commitment, and as shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentapproved by the Administrative Agent), (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) without the consent of the Borrower and CNAI, no such assignments in respect of the Administrative Agent Term A Facility shall not be required with respect to any assignment by any Lender to an Affiliate permitted until the expiration of 90 days following the Effective Date (except that no such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or Borrower shall be required in connection with the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part primary syndication of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(aFacilities), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:
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Assignments and Participations. (a) The Loan Documents shall be binding upon and inure to the benefit of the Borrower, the Lenders, the Administrative Agent, all future holders of the Notes and their respective successors and assigns, except that no Credit Party may assign, delegate or transfer any of its rights or obligations under the Loan Documents without the prior written consent of the Administrative Agent and each Lender.
(b) Each Lender mayshall have the right at any time, upon written notice to the Administrative Agent of its intent to do so and the payment of a fee (the "Assignment Fee") of $1,500 to the Administrative Agent by the assigning or -------------- assignee Lender, to sell, assign, transfer or negotiate all or any part of such Lender's rights and obligations under the Loan Documents (i) to one or more of the other Lenders, (ii) to one or more of its affiliates or the affiliates or Approved Funds of one or more of the other Lenders, (iii) to any Federal Reserve Bank or (iv) with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to the Borrower, required during the continuance of an Event of Default), to any other bank, insurance company, pension fund, mutual fund or other financial institution or fund, which in the normal course of its business, purchases loans such as the Loans, provided that each such sale, -------- assignment, transfer or negotiation pursuant to clause (iv) shall be in no event be less than a minimum amount of $5,000,000 1,000,000 (or, if less, a Lender's entire Credit Exposure). In addition, during the entire 30 day period following the Effective Date, assignments made by the Administrative Agent and the Syndication Agent (excluding assignments of Term Loans in an aggregate principal amount equal to the amount of such Lender’s CommitmentExisting Term Loans held by them on April 20, and 1998) shall not be an integral multiple of subject to the $1,000,000 minimum size restriction or such Lender’s entire Commitmentrequire payment of the Assignment Fee. For each assignment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (Acceptance Agreement which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five shall record in a register (5the "Register") Business Days after having received notice thereofmaintained by the Administrative Agent on behalf of the Borrower, for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time and the registered owners of the obligation(s) evidenced by the Note(s). The entries in the Register shall be presumptively correct absent manifest error. Upon such execution, delivery, acceptance and recordingrecording by the Administrative Agent, from and after the effective date specified in each such Assignment and AssumptionAcceptance Agreement, (x) the assignee thereunder thereunder, if not already a Lender, 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 AssumptionAcceptance Agreement, have the rights and obligations of a assignor Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and shall be released from its obligations under this Agreement and, in the case Loan Documents. The Borrower agrees upon written request of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect and at the Borrower's expense to any assignment by any Lender execute and deliver (i) to such assignee, a Note, dated the date of the assignor's Note subject to such Assignment and Acceptance Agreement, in an Affiliate aggregate principal amount equal to the Loans assigned to, and Commitment assumed by, such assignee and (ii) to such assignor Lender, a Note, dated the date of the assignor's Note subject to such Assignment and Acceptance Agreement, in an aggregate principal amount equal to the balance of such Lender or to another Lender or to an Approved Fundassignor Lender's Loans and Commitment, if any, and (B) each assignor Lender shall cancel and return to the Borrower its existing Note. Upon any Lender may at any timesuch sale, without assignment or other transfer, the consent of Commitments and the Borrower, any LC Issuer or Pro Rata Shares set forth in Exhibit A shall be adjusted accordingly by the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign .
(c) Each Lender may grant participations in all or any part of its rights under this Agreement Loans, its Note and its Commitment to a Federal Reserve Bankone or more banks, insurance companies, financial institutions, pension funds, mutual funds or funds which in the normal course of business purchase loans such as the Loans, provided that (i) such Lender's obligations under the Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties to the Loan Documents for the performance of such obligations, (iii) the Borrower, the Administrative 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 the Loan Documents, (iv) no sub-participations shall be permitted and (v) the voting rights of any holder of any participation shall be limited to decisions that require the consent of all Lenders as set forth in Section 11.1(a). The Borrower acknowledges and agrees that any such participant shall for purposes of Sections 2.8, 2.10, 2.11, and 2.14 be deemed to be a "Lender"; provided, however, the Borrower shall not, at any time, be obligated to pay any participant in any interest of any Lender hereunder any sum in excess of the sum that the Borrower would have been obligated to pay to such Lender in respect of such interest had such Lender not sold such participation.
(d) If any (i) assignment is made pursuant to subsection (b) above or (ii) participation is granted pursuant to subsection (c) above, to any Person that is not a U.S. Person, such Person shall release furnish such certificates, documents or other evidence to the transferor Borrower and the Administrative Agent, in the case of clause (i), and to the Borrower and the Lender from that sold such participation, in the case of clause (ii), as shall be required by Section 2.8(e).
(e) No Lender shall, as between and among the Borrower, the Administrative Agent, the Syndication Agent, and such Lender, be relieved of any of its obligations hereunderunder the Loan Documents as a result of any sale, assignment, transfer or negotiation of, or granting of participations in, all or any part of its Loans, its Commitment or its Note, except that a Lender shall be relieved of its obligations to the extent of any such sale, assignment, transfer, or negotiation of all or any part of its Loans, its Commitment or its Note pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary contained in this Section, any Lender may at any time or from time to time assign or pledge all or any portion of its rights under the Loan Documents to (i) a Federal Reserve Bank or (ii) if such Lender is a fund which in the normal course of its business purchases loans such as the Loans, to its lenders or a trustee under an indenture for the benefit of its creditors, to secure such fund's obligations, provided that any such assignment or pledge shall not release such assignor from its obligations thereunder.
(g) In the event that the Borrower shall request that Lenders enter into any amendment, modification, consent or waiver with respect to this Agreement or any other Loan Document, which amendment, modification, consent or waiver cannot become effective without the consent of each Lender, and any Lender elects not to enter into such amendment, modification, consent or waiver (each such Lender being a "Dissenting Lender"), then the Borrower shall have the ----------------- right upon 10 days' written notice to the Administrative Agent and such Dissenting Lender, to require each such Dissenting Lender to assign 100% of its Term Loans and Term Loan Notes at par to any Lender or any other financial institution that agrees, in its sole discretion, to assume such Term Loans and Term Loan Notes. For Each such assignment shall be made pursuant to an Assignment and Acceptance Agreement and shall comply with the purposes other terms of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:11.
Appears in 1 contract
Sources: Term Loan Agreement (Total Renal Care Holdings Inc)
Assignments and Participations. (a) Each Lender Bank may, in accordance with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Sectionapplicable law, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement (including the Letter of Credit Liabilities held by the assigning LenderBank pursuant to Section 2.18), (ii) except in the case of an assignment of all of a Bank’s rights and obligations under this Agreement, (ii) the sum of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 (and shall be an integral multiple in increments of $1,000,000 or such Lender’s entire Commitmentin excess thereof), (iii) each such assignment shall be to an Eligible Assignee, (iv) the Administrative Agent and, if no Event of Default exists, the Parent consent to such assignment (which consent shall not be unreasonably withheld), and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording by the Administrative Agent in the Register, an Assignment and AssumptionAcceptance, together with any Notes then held by such assigning Bank and any Notes then held by such assignee and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and Bank hereunder, (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance 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 except that the rights under Sections 2.06, 2.10, 2.13 and 8.04 of such Bank shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a party hereto), and (although z) unless the Parent in its sole discretion otherwise consents, no such assignee shall be entitled to receive any greater payment pursuant to Sections 2.06, 2.10 and 2.13 than the assigning Bank would have been entitled to receive with respect to the rights assigned to such assignee, except as a result of circumstances arising after the date of such assignment.
(b) By executing and delivering an Assignment and Acceptance, the 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 Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or any other instrument or document furnished pursuant hereto or in connection herewith, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of any Loan Document or any other instrument or document furnished pursuant hereto or in connection herewith; (ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or any other Person or the performance or observance by any Borrower or any other Person of any of its respective obligations under any Loan Document or any other instrument or document furnished pursuant hereto or in connection herewith; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(d) 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 Administrative Agent, the Issuing Bank, such assigning Bank or any other 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, any of the other Loan Documents or any other instrument or document; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Administrative Agent by the terms hereof or thereof, together with such powers and discretion as are reasonably incidental thereto; and (ix) 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 Bank.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Banks and the Commitment of and the principal amount of the Advances owing to, each Bank 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 Administrative Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Bank and an assignee representing that it is an Eligible Assignee, together with any Notes then held by such assigning Bank and any Notes then held by such assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers. Within five Business Days after its receipt of such notice, an authorized officer of each Borrower shall execute and deliver to the Administrative Agent (i) in exchange for any surrendered Notes a new Note payable to the order of such Eligible Assignee (if a new Note is requested by such Eligible Assignee) in an amount equal to its Commitment after giving effect to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note payable to the order of the assigning Bank (if an new Note is requested by the assigning Bank) in an amount equal to the Commitment retained by it hereunder (such new Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Notes, if any, shall be dated the effective date of such Assignment and Acceptance, shall be properly completed and shall otherwise be in substantially the form of Exhibit A).
(e) Each Bank, in accordance with applicable law, may sell participations to one or more banks or other entities (other than the Parent or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of any of its Commitments, the Advances owing to it and the Note held by it); provided that (i) such Bank’s obligations under this Agreement (including its Commitments to the Borrowers hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of any such Notes for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent, the Issuing Bank and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, (v) the terms of any such participation shall not restrict such Bank’s ability to make any amendment or waiver of this Agreement or any Note or such Bank’s ability to consent to any departure by a Borrower therefrom without the approval of the participant, except that the approval of the participant may be required 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, or 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, and (vi) unless the Parent in its sole discretion otherwise consents, no such participant shall be entitled to indemnification receive any greater payment pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) Sections 2.06, 2.10 and 2.13 than such Bank would have been entitled to receive with respect to the contraryrights assigned to such participant by such Bank except as a result of circumstances arising after the date of such participation to the extent that such circumstances affect other Banks and participants generally, and (Avii) the consent each participant that is not a United States person (as such term is defined in Section 7701(a)(30) of the Borrower Code) shall provide to the Administrative Agent and the Parent a U.S. Internal Revenue Service Form W-8BEN or W-8ECI, as appropriate, or any successor form prescribed by the U.S. Internal Revenue Service, duly completed and certifying that such participant is fully exempt from United States withholding taxes with respect to all payments to be made to such participant under such participation agreement, or other documents satisfactory to the Parent and the Administrative Agent indicating that all payments to be made to such participant under such participation agreement are fully exempt from such withholding taxes, and neither the Borrowers nor the Administrative Agent shall not have any obligation to pay to any participant any taxes, penalties, interest or other expenses, costs and losses incurred or payable by the Borrowers or the Administrative Agent as a result of the failure of such participant to obtain such additional duly completed and signed copies of one or the other of such forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) as may be required under then-current United States law or regulations to avoid United States withholding taxes on payments in respect of all amounts to be received by such participant.
(f) Any Bank may, in connection with respect any assignment or participation or proposed assignment or participation pursuant to this Section 8.06, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers or any of their Affiliates furnished to such Bank by or on behalf of the Borrowers or any of their Affiliates; provided, that, prior to any assignment by such disclosure, the assignee or participant or proposed assignee or participant shall agree to comply with Section 8.09.
(g) Notwithstanding any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fundother provision set forth in this Agreement, and (B) any Lender Bank may at any time, without time (i) create a security interest in all or any portion of its rights under the consent Loan Documents (including the Advances owing to it and the Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Borrower, any LC Issuer or Federal Reserve Board and (ii) upon notice to the Borrowers and the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part portion of its rights and obligations under this Agreement the Loan Documents to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Affiliates.
Appears in 1 contract
Assignments and Participations. (a) Each Lender Bank may, with upon obtaining the prior written consent of the BorrowerAgent, each LC Issuer Issuing Bank and the Administrative Agent Swing Line Bank (which consents consent by any such party shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) financial institutions all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Letter of Credit Participations, Swing Line Participations and Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning LenderBank’s rights and obligations under this Agreementso assigned, (ii) the amount of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) may be in the amount of such Bank’s entire Commitment but otherwise shall in no event not be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentunless the Company and the Agent otherwise consent, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall (A) execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register, an Assignment and Assumption, together with Acceptance and (B) deliver to the Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of 3,500; provided that the parties Agent may, in its sole discretion, elect to the Assignment waive such processing and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank)recording fee, (v) if no Event of Default under clause (a), (b), (d) (with respect to an Event of Default under Section 5.03 only) or (f) of Section 6.01 has occurred and is continuing, the prior written consent of the Borrower Company (which consent shall not be unreasonably withheld or delayed) shall be required after for an assignment by a Bank to an assignee which is not a Bank or an Affiliate or Approved Fund of a Bank; provided that the occurrence and during the continuance of any Event of Default, and (vi) the Borrower Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five fifteen (515) Business Days after having received notice thereof, and (vi) consent of the Agent shall not be required for an assignment by a Bank to an assignee which is a Bank or an Affiliate or Approved Fund of a Bank. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) the assignee thereunder which effective date shall be a party hereto andat least two (2) Business Days after the execution thereof, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance 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 hereto).
(although b) By executing and delivering an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to Assignment and Acceptance, the contrary, (A) the consent of the Borrower Bank assignor thereunder and the Administrative Agent shall not be required 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 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or any Borrowing Subsidiary or the performance or observance by the Company or any Borrowing Subsidiary of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) or 5.01(b) 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 Bank or any other 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 on its behalf and to exercise such powers under this Agreement as are delegated to the Agent by the terms hereof, together with such powers 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 Bank.
(c) The Agent, acting for this purpose as a non-fiduciary agent of the borrower, shall maintain at its address referred to in Section 9.02 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 Banks and the Issuing Banks and the Commitment of, and principal amount of the Advances owing to, each Bank and the amount of the Letter of Credit Reimbursement Obligations owing to each Issuing Bank from time to time (the “Register”). The Agent (or its designee) shall also reflect in the Register the transfer of any portion of any Bank’s interest in the Notes, any Advances not evidenced by a Note, any Letter of Credit Reimbursement Obligation or any other obligations hereunder (collectively, the “Obligations”), and the Agent shall retain a copy of the assignment transferring the Obligations for the registration or transfer of the Obligations, and shall enter the names and addresses of the transferees of the Obligations. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent, the Banks and the Issuing Banks shall treat each Person whose name is recorded in the Register as a Bank or an Issuing Bank, as applicable, hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers at any reasonable time and from time to time upon reasonable prior notice. The Obligations are registered obligations and the right, title and interest of any Bank or Issuing Bank and/or its assignees in and to such Obligations shall be transferable only upon notation of such transfer in the Register (and each Note shall expressly so provide). This Section 9.08(c) shall be construed so that the Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related Treasury Regulations and solely for this purpose, the Agent (or its designee) shall be the Company’s agent for purposes of maintaining the Register and notations of transfer in the Register.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee representing that it is an Eligible Assignee, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C-1 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.
(e) Each Bank may sell participations to one or more banks or other entities (other than a Defaulting Bank) in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it and the Letter of Credit Participations, Swing Line Participations and Note or Notes held by it); provided, however, that (i) such Bank’s obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of any such Note and Letter of Credit Participations and Swing Line Participations and the maker of any Advance for all purposes of this Agreement, (iv) the Borrowers, the Agent, any Issuing Bank and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and (v) any agreement between such Bank and any participant in connection with such participating interest shall not restrict such Bank’s right to agree to any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Lender Borrower therefrom, except (to the extent such participant would be affected thereby) a reduction of the principal of, or interest on, any Advance or postponement of any date fixed for payment thereof or a release of the Company’s guaranty obligations pursuant to Article 8. Each Bank that sells a participation shall, acting solely for this purpose as an Affiliate agent of the applicable Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the obligations under this Agreement (the “Participant Register”); provided that no Bank shall have any obligation to disclose any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under this Agreement) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such Lender or participation for all purposes of this Agreement notwithstanding any notice to another Lender or the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(f) The Company and each Borrower agree that each participant shall be entitled to the benefits of Sections 2.15 and 2.20 (subject to the requirements and limitations therein, including the requirements under Section 2.20(f) (it being understood that the documentation required under Section 2.20(f) shall be delivered to the participating Bank)) to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that such participant (A) agrees to be subject to the provisions of Sections 2.20(i) and 2.21 as if it were an Approved Fund, assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any Lender may greater payment under Sections 2.15 or 2.20, with respect to any participation, than its participating Bank would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation.
(g) Notwithstanding any other provisions set forth in this Agreement, any Bank at any timetime may assign, without the consent of the Borroweras collateral or otherwise, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights (including, without limitation, rights to payments of principal of and/or interest on the Advances) under this Agreement to a any Federal Reserve BankBank or any central bank having jurisdiction over such Bank without notice to or consent of the Company, provided that no such assignment shall release any Borrowing Subsidiary, any other Bank or the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Agent.
Appears in 1 contract
Assignments and Participations. (a) Each Lender Neither the Lessor nor the Company may assign its rights or obligations hereunder or under the Notes or any other Operative Document without the prior consent of all of the Lenders and the Agent. Except during the existence of an Event of Default, neither the Lessor nor the Agent may, with without the prior written consent of the BorrowerCompany, each LC Issuer assign any interest under the (i) Ground Lease, except in accordance with Section 9 thereof, or (ii) the Lease, except in accordance with Sections 12 and the Administrative Agent 21 thereof.
(which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gb) shall to the extent required by such Section, Each Lender may at any time assign to one or more banks or other entities (other than an Ineligible Institution) financial institutions all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Loan Commitment, the Advances Loans owing to it and its participation in Facility LCs)the Note held by it) and the assignee thereof shall assume all such rights and obligations pursuant to an Assignment and Acceptance; provided provided, however, that (i) each such assignment shall be of a -------- ------- constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) no interest may be sold by a Lender pursuant to this Section 11.06(b) unless the assignee shall agree to assume ratably equivalent portions of the assigning Lender's rights and obligations under this Agreement, (iii) the amount of the Loan Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 5,000,000, or integral multiples of $1,000,000 in excess thereof, in the case of assignments of Loan Commitments (or, if less, the entire amount Commitment of such the assigning Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment), (iiiiv) each such assignment shall be to an Eligible Assignee, (ivv) a Lender may not have more than two (2) assignees that are not then Lenders at any one time and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g))2,500, and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice send to the Administrative Agent within five (5) Business Days after having received notice thereofCompany an executed counterpart of such Assignment and Acceptance. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (xA) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (yB) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s '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, each assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (although 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or the performance or observance by the Company of any of its obligations under this Agreement or any other Operative Document; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 7.01 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 under this Agreement as are delegated to the Agent by the terms hereof, together with such powers 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 either a Lender.
(d) The Agent shall maintain at its address referred to in Section 11.02 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 Loan Commitment of, 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 Company, the Lessor, 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 Company or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the acceptance of any Assignment and Acceptance for recordation in the Register, Exhibit D hereto shall be deemed to be amended to reflect either --------- the revised Loan Commitments of the Lenders parties to such Assignment and Acceptance as well as administrative information with respect to any new Lender as such information is recorded in the Register.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit D hereto, (i) accept such Assignment and Acceptance, (ii) record the --------- information contained therein in the Register and (iii) give prompt notice thereof to the Lessor, the Company; within five (5) Business Days after its receipt of such notice and its receipt of an executed counterpart of such Assignment and Acceptance, the Lessor, at the expense of the Company, shall execute and deliver to the Agent in exchange for the surrendered Note, or a new Note, as appropriate, to the order of such Eligible Assignee in an amount equal to the Loan Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Loan Commitment, a new Note, to the order of the assigning Lender in an amount equal to the Loan Commitment retained by it hereunder. Such new Note shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note, shall be dated the date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit B or Exhibit C, as applicable. --------- ---------
(f) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Loan Commitment and the Loans owing to it and the Notes held by it); provided, -------- however, that (i) such Lender's obligations under this Agreement (including, ------- without limitation, its Loan Commitment to the Lessor hereunder) 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 Notes for all purposes of this Agreement, (iv) the Company, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with its rights and obligations under this Agreement and the other Operative Documents, (v) such Lender shall continue to be entitled able to indemnification pursuant agree to Section 8.04(c)). Notwithstanding anything contained in any modification or amendment of this Section 8.07(a) to Agreement or any waiver hereunder without the contraryconsent, approval or vote of any such participant or group of participants, other than modifications, amendments and waivers which (A) the consent postpone any date fixed for any payment of, or reduce any payment of, principal of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of or interest on such Lender Lender's Notes or to another Lender or to an Approved Fund, and (B) increase the amount of such Lender's Loan Commitment in a manner which would have the effect of increasing the amount of a participant's participation, or (C) reduce the interest rate payable under this Agreement and such Lender's Note, or (D) consent to the assignment or the transfer by the Company or the Lessor of any of its rights and obligations under this Agreement and (vi) except as contemplated by the immediately preceding clause (v), no participant shall be deemed to be or to have any of the rights or obligations of a "Lender" hereunder.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 11.06, disclose to the assignee or participant or proposed assignee or participant any information relating to the Company furnished to such Lender by or on behalf of the Company; provided that, prior to any such disclosure, the assignee or -------- participant or proposed assignee or participant shall agree in writing for the benefit of the Company to preserve the confidentiality of any confidential information relating to the Company received by it from such Lender in a manner consistent with Section 11.13.
(h) Anything in this Agreement to the contrary notwithstanding, any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Loans owing to a it) and the Note issued to such Lender hereunder in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System (or any successor regulation) and the applicable operating circular of such Federal Reserve Bank.
(i) Notwithstanding any other provision of this Agreement or any other Operative Document, provided that neither the Company nor any of its respective Affiliates may acquire any of the Notes or the Lessor Investment unless the Company or such Affiliate acquires all of the Notes and the entire Lessor Investment in a single transaction and thereby becomes bound by the provisions hereof; and unless the Company or such Affiliate shall have acquired all of the Notes and the entire Lessor Investment, it shall not be entitled to exercise any rights or remedies of a Lender under any of the Operative Documents.
(j) Notwithstanding any other provision of this Agreement to the contrary, no such assignment assignee or participant shall release be entitled to receive any greater payment under Section 4.06 or 5.03 than the transferor Lender from any would have been entitled to receive with respect to the rights transferred, unless such transfer is made with the Company's prior written consent or by reason of its obligations hereunder. For the purposes provisions of this Section 8.07(a), 5.02 or 5.03 hereof requiring such Lender to designate a different Applicable Funding Office under certain circumstances or at a time when the terms “Approved Fund” and “Ineligible Institution” have the following meanings:circumstances giving rise to such a greater payment did not exist.
Appears in 1 contract
Sources: Credit and Investment Agreement (Scientific Atlanta Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent may (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gi) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or including, without limitation, a portion of its Commitment, the Advances Loans owing to it and its participation rights and obligations as a Lender with respect to Letters of Credit Accommodations) and the other Financing Agreements; to its parent company and/or any Affiliate of such Lender which is at least fifty (50%) percent owned by such Lender or its parent company or to one or more Lenders or (ii) assign all, or if less than all a portion equal to at least $5,000,000 in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the aggregate for the assigning Lender’s Lender or assigning Lenders, of such rights and obligations under this AgreementAgreement to one or more Eligible Transferees, each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Acceptance; provided, that, (A) the consent of Agent shall be required in connection with any assignment to an Eligible Transferee pursuant to clause (ii) above, (B) if such Eligible Transferee is not a bank, Agent shall receive a representation in writing by such Eligible Transferee that either (1) no part of its acquisition of its Loans is made out of assets of any employee benefit plan, or (2) after consultation, in good faith, with Borrowers and provision by Borrowers of such information as may be reasonably requested by such Eligible Transferee, the Commitment Amount acquisition and holding of such Commitments and Loans does not constitute a non-exempt prohibited transaction under Section 406 of ERISA and Section 4975 of the assigning Lender being assigned pursuant to each Code, or (3) such assignment is an “insurance company general account,” as such term is defined in the Department of Labor Prohibited Transaction Class Exemption 95.60 (determined issued July 12, 1995) (“PTCE 95-60”), and, as of the date of the Assignment and Assumption assignment, there is no “employee benefit plan” with respect to such assignment) shall in no event be less than $5,000,000 or, if less, which the entire aggregate amount of such Lendergeneral account’s Commitmentreserves and liabilities for the contracts held by or on behalf of such “employee benefit plan” and all other “employee benefit plans” maintained by the same employer (and affiliates thereof as defined in Section V(a)(1) of PTCE 95-60) or by the same employee organization (in each case determined in accordance with the provisions of PTCE 95-60) exceeds ten percent (10%) of the total reserves and liabilities of such general account (as determined under PTCE 95-60) (exclusive of separate account liabilities) plus surplus as set forth in the National Association of Insurance Commissioners Annual Statement filed with the state of domicile of such Eligible Transferee and (C) such transfer or assignment will not be effective until recorded by the Agent on the Register. As used in this Section, the term “employee benefit plan” shall have the meaning assigned to it in Title I of ERISA and shall be an integral multiple also include a “plan” as defined in Section 4975(e)(1) of $1,000,000 or such Lender’s entire Commitmentthe Code.
(b) Agent shall maintain a register of the names and addresses of Lenders, their Commitments and the principal amount of their Loans (iii) the “Register”). Agent shall also maintain a copy of each such assignment Assignment and Acceptance delivered to and accepted by it and shall be modify the Register to an Eligible Assignee, (iv) the parties give effect to each such assignment shall execute Assignment and Acceptance. Upon its receipt of each Assignment and Acceptance, Agent will give prompt notice thereof to Lenders and deliver to each of them a copy of the Administrative Agent, for its acceptance executed Assignment and recording Acceptance. The entries in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which Register shall be payable by one or more of the parties to the Assignment conclusive and Assumptionbinding for all purposes, absent manifest error, and not by the Borrower (except Borrowers, Obligors, Agent and Lenders may treat each Person whose name is recorded in the case Register as a Lender hereunder for all purposes of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower this Agreement. The Register shall be deemed available for inspection by Borrowers, Obligors and any Lender at any reasonable time and from time to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five time upon reasonable prior notice. *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
(5c) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (xi) the assignee thereunder shall be a party hereto and to the other Financing Agreements and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AssumptionAcceptance, have the rights and obligations (including, without limitation, the obligation to participate in Letter of Credit Accommodations) of a Lender hereunder and thereunder and (yii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement and, in the case Agreement.
(d) By execution and delivery of an Assignment and Assumption covering Acceptance, the assignor and 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, the 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 of the other Financing Agreements or the execution, legality, enforceability, genuineness, sufficiency or value of this Agreement or any of the other Financing Agreements furnished pursuant hereto, (ii) the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers, Obligors or any of their respective Subsidiaries or the performance or observance by any Borrower or any Obligor of any of the Obligations; (iii) such assignee confirms that it has received a copy of this Agreement and the other Financing Agreements, together with such other documents and information 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 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 Agreement and the other Financing Agreements, (v) such assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Financing Agreements as are delegated to Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) 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 Financing Agreements are required to be performed by it as a Lender. Subject to Section 13.7, Agent and Lenders may furnish any information concerning Borrowers, Obligors or their respective Subsidiaries in the possession of Agent or any Lender from time to time to assignees and Participants.
(e) Each Lender may sell participations to one or more banks or other entities in or to all or the remaining a portion of an assigning its rights and obligations under this Agreement and the other Financing Agreements (including, without limitation, all or a portion of its Commitments and the Loans owing to it and its participation in the Letter of Credit Accommodations, without the consent of Agent or the other Lenders); provided, that, (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) and the other Financing Agreements shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and Borrowers, Obligors, 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, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to Agreement and the contraryother Financing Agreements, (Aiii) the consent of the Borrower and the Administrative Agent Participant shall not be required with respect to have any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement or any of the other Financing *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. Agreements (the Participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the Participant relating thereto) and all amounts payable by any Borrower or any Obligor hereunder shall be determined as if such Lender had not sold such participation, and (iv) so long as no Event of Default is ongoing, any sale to a (A) hedge fund or (B) proposed Participant that is a direct competitor of any Borrower shall require the prior written consent of Borrowers (which shall not be unreasonably withheld, conditioned or delayed and such approval shall be deemed given by Borrowers if no objection from Borrowers is received within five (5) Business Days after written notice of such proposed participation has been provided by Agent) and (v) if such Participant is not a bank, represent that either (A) no part of its acquisition of its participation is made out of assets of any employee benefit plan, or (B) after consultation, in good faith, with Borrowers and provision by Borrowers of such information as may be reasonably requested by the Participant, the acquisition and holding of such participation does not constitute a non-exempt prohibited transaction under Section 406 of ERISA and Section 4975 of the Code, or (C) such participation is an “insurance company general account, “ as such term is defined in the “PTCE 95-60”, and, as of the date of the transfer there is no “employee benefit plan” with respect to which the aggregate amount of such general account’s reserves and liabilities for the contracts held by or on behalf of such “employee benefit plan” and all other “employee benefit plans” maintained by the same employer (and affiliates thereof as defined in Section V(a)(1) of PTCE 95-60) or by the same employee organization (in each case determined in accordance with the provisions of PTCE 95-60) exceeds ten (10%) percent of the total reserves and liabilities of such general account (as determined under PTCE 95-60) (exclusive of separate account liabilities) plus surplus as set forth in the National Association of Insurance Commissioners Annual Statement filed with the state of domicile of the Participant.
(f) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans hereunder to a Federal Reserve Bank in support of borrowings made by such Lenders from such Federal Reserve Bank, provided that no .
(g) Borrowers shall use their commercially reasonable efforts to assist Agent or any Lender permitted to sell assignments or participations under this Section 13.5 in whatever manner reasonably necessary in order to enable or effect any such assignment or participation, including (but not limited to) the execution and delivery of any and all agreements, notes and other documents and instruments as shall release be requested and the transferor Lender from any delivery of its obligations hereunder. For informational materials, appraisals or other documents for, and the purposes participation of this Section 8.07(a)relevant management in meetings and conference calls with, the terms “Approved Fund” and “Ineligible Institution” have the following meanings:potential assignees or Participants.
Appears in 1 contract
Assignments and Participations. (a) Each Lender mayThe provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, with except that the Loan Parties may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Borrower, each LC Issuer and the Administrative Agent and each Lender and no Lender or Issuer may assign or otherwise transfer any of its rights or obligations hereunder except (which consents i) to an assignee in accordance with the provisions of clauses (b) and (h) below, (ii) by way of participation in accordance with the provisions of clause (g) below or (iii) by way of a grant to a Special Purpose Vehicle or a pledge or assignment of a security interest subject to the restrictions of clause (f) below (and any other attempted assignment or transfer by any party hereto shall not be unreasonably withheld null and void). Nothing in this Agreement, express or delayed)implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and if demanded by the Borrower pursuant to Section 8.07(g) shall permitted assigns, Participants to the extent required provided in clause (g) below, Special Purpose Vehicles to the extent provided in (f) below and, to the extent expressly contemplated hereby, each of the Administrative Agent, the Lenders and the Issuers, their respective Affiliates and each of their respective partners, directors, officers, employees, agents, trustee, representatives, attorneys, consultants and advisors) any legal or equitable right, remedy or claim under or by such Section, reason of this Agreement.
(b) Each Lender may at any time assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement hereunder (including all or a portion of its Commitment, Revolving Credit Commitment and the Advances Loans at the time owing to it and all of its participation in Facility LCsrights and obligations with respect to the Swing Loans and Letters of Credit); provided provided, however, that (i) each any such assignment shall be subject to the following conditions:
(i) (A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Revolving Credit Commitment and the Loans and Swing Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a constantLender or an Approved Fund, no minimum amount need be assigned and (B) in any case not described in clause (b)(i)(A) above, the aggregate amount of the Revolving Credit Commitment (which for this purpose includes the Revolving Credit Outstandings thereunder) or, if the applicable Revolving Credit Commitment is not then in effect, the principal outstanding balance of the Revolving Credit Outstandings of the assigning Lender subject to each such assignment (determined as of the effective date of the Assignment and Acceptance with respect to such assignment) shall not be less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default shall have occurred and be continuing, the Borrower Agent otherwise consents (each such consent not to be unreasonably withheld or delayed).
(ii) Each partial assignment shall be made as an assignment of a varying, percentage proportionate part of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Agreement with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, Revolving Credit Outstandings and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, the Revolving Credit Commitment assigned.
(iii) each No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) above and, in addition:
(A) the consent of the Borrower Agent (such consent not to be unreasonably withheld or delayed) shall be required unless an Event of Default shall have occurred and be continuing at the time of such assignment or;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments to a Person who is not a Lender, an Eligible Assignee, Affiliate of a Lender or an Approved Fund;
(C) the consent of the Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and
(D) the consent of the Swing Loan Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Swing Loans.
(iv) the The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent other than in respect of the Borrower assignments made pursuant to Sections 2.17 (Substitution of Lenders) and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:11.1
Appears in 1 contract
Sources: Credit Agreement (J Crew Group Inc)
Assignments and Participations. (a) Each Lender may, upon ten days’ notice to the Agent and with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent Company (which consents consent shall not be unreasonably withheld or delayed)) and, and if demanded by the Borrower Company pursuant to Section 8.07(g2.05 (b) shall or 2.06(b), upon at least 20 Business Days’ notice to such Lender and the extent required by such SectionAgent, will assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an affiliate of a Lender, or an assignment of all of a ▇▇▇▇▇▇’s rights and obligations under this Agreement, the amount of the Commitment Amount of the assigning Lender ▇▇▇▇▇▇ being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment10,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Company pursuant to this Section 8.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Company pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Company or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the RegisterRegister (as defined in clause (d) below), an Assignment and Assumption, together with any Note requested pursuant to Section 2.13(e) subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption3,500, and not unless waived by the Borrower (except Agent in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Defaultits sole discretion, and (vivii) the Borrower Eligible Assignee shall be deemed to have consented to any such assignment unless it shall object thereto by written notice complete, execute and deliver to the Administrative Borrowers and Agent within five (5) Business Days after having received notice thereofthe appropriate tax form pursuant to Section 2.14. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAssumption and upon compliance with clause (vii) of the previous sentence, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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 (although hereto); provided that an assigning Lender shall continue to be entitled Lender’s rights to indemnification and reimbursement pursuant to Section 8.04(c))8.04 and its rights and obligations under Sections 2.11 and 2.14 shall survive assignment hereunder. Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose vehicle (an “SPV”) of such Granting Lender, identified as such in writing from time to time by the Granting Lender to the Agent and the Company, the option to provide to the Borrowers all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to Section 2.01, provided that (i) nothing herein shall constitute a commitment by any SPV to make any Advance, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof and (iii) the Borrowers may bring any proceeding against either the Granting Lender or the SPV in order to enforce any rights of the Borrowers hereunder. The making of an Advance by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by the Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any payment under this Agreement for which a Lender would otherwise be liable, for so long as, and to the extent, the related Granting Lender makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States or any State thereof arising out of any claim against such SPV under this Agreement. In addition, notwithstanding anything to the contrary contained in this Section 8.07(aSection, any SPV may with notice to, but without the prior written consent of, the Company or the Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to its Granting Lender or to any financial institutions (consented to by the Company and the Agent) providing liquidity and/or credit support (if any) with respect to commercial paper issued by such SPV to fund such Advances and such SPV may disclose, on a confidential basis, confidential information with respect to the contraryCompany and its Subsidiaries to any rating agency, (A) commercial paper dealer or provider of a surety, guarantee or credit liquidity enhancement to such SPV. This paragraph may not be amended without the consent of any SPV at the Borrower time holding Advances under this Agreement.
(b) By executing and delivering an Assignment and Assumption, the Lender assignor thereunder and the Administrative Agent shall not be required 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 Assumption, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with this Agreement 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 instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 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 Assumption; (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 this Agreement 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company. The relevant Borrower, at its own expense, shall if so requested pursuant to Section 2.13(e) execute and deliver to the Agent in exchange for the surrendered Note a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Assumption and, if the assigning ▇▇▇▇▇▇ has retained a Commitment hereunder, a new Note to the order of the assigning Lender in an amount equal to the Commitment 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 Assumption and shall otherwise be in substantially the form of Exhibit A hereto.
(d) The Agent acting solely for this purpose as a nonfiduciary agent of the relevant Borrower shall maintain at its address referred to in Section 8.02 if such address is within the United States and, if not, at one of its offices located within the United States a copy of each Assignment and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and, with respect to ▇▇▇▇▇▇▇, the Commitment of, and principal amount of the Advances 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 each Borrower, 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 Company or any Lender, as to its Commitment, at any reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may, with the prior consent of the Company (which consent shall not be unreasonably withheld or delayed), upon notice to the Agent, sell participations to one or more banks or other entities (other than the Company or any Affiliate of the Company) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) 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 and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Note, or any consent to another any departure by any Borrower 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 the Company from its obligations hereunder, including, without limitation, its obligations under Article IX. Each Lender or to an Approved Fundthat sells a participation shall, acting solely for this purpose as a nonfiduciary agent of the relevant Borrower, maintain a register at one of its offices located within the United States on which it enters the name and address of each participant and the Commitment of, and principal amount of the Advances owing to, each participant from time to time (Bthe “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive and binding, absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to any Borrower furnished to such Lender by or on behalf of any Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information relating to the Borrowers received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Advances owing to a it and the Note or Notes held by it), in favor of any Federal Reserve Bank, provided that no Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any other central bank having jurisdiction over such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Lender.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Loans, its Note, and its Revolving Credit Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an assignment of all of a Lender's rights and obligations under this Agreement, any such partial assignment shall be in an amount at least equal to $5,000,000 or an integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant, and not varying, percentage of all of its rights and obligations under this Agreement; and
(iv) the parties to such assignment shall execute and deliver to the Agent for its acceptance an Assignment and Acceptance in the form of Exhibit B hereto, together with any Note subject to such assignment and a processing fee of $3,500 (which amount shall not be payable by any Borrower);
(v) except in the case of an assignment to another Lender, any assignment of all or any portion of the Revolving Credit Commitment shall require the consent of the Agent and, unless a Default or Event of Default has occurred and is continuing, an Authorized Representative, such consent in each case not to be unreasonably withheld; and
(vi) neither any Borrower nor Bermuda Holding 2 Ltd., AI 1 Ltd. nor AI 3 Ltd. shall incur any greater expense or liabilities (including, without limitation, indemnities and increased costs (other than with respect to taxes, which shall be governed by the provisions of Section 4.6 hereof)) than it would have incurred had such assignment not taken place. Upon execution, delivery, and acceptance of such Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, rights, and benefits of a Lender hereunder and the assigning Lender 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, the assignor, the Agent and the Borrowers shall make appropriate arrangements so that, if required, new Notes are issued to the assignor and the assignee. If the assignee is a Non-U.S. Lender, it shall deliver to the Borrowers and the Agent certification as to exemption from deduction or withholding of Taxes in accordance with Section 4.6.
(b) The Agent shall maintain at its address referred to in Section 11.2 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, 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 any Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the parties thereto, together with any Note subject to such assignment and payment of the processing fee, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender 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, the Advances owing to it and Revolving Credit Commitment or its participation in Facility LCsLoans); provided provided, however, that (i) each such assignment Lender s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participant shall be of a constant, and not a varying, percentage of all entitled to the benefit of the assigning yield protection provisions contained in Article IV and the right of set-off contained in Section 11.3, (iv) neither any Borrower nor Bermuda Holding 2 Ltd., AI 1 Ltd. nor AI 3 Ltd. shall have any greater obligation to a participant than it would have had to such Lender in the absence of the existence of such participant and (v) each Borrower shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, and such Lender shall retain the sole right to enforce the obligations of any Borrower relating to its Loans and to approve any amendment, modification, or waiver of any provision of this Agreement (ii) other than amendments, modifications, or waivers decreasing the Commitment Amount amount of principal of or the rate at which interest or fees are payable on such Loans, extending any scheduled principal payment date or date fixed for the payment of interest on such Loans, releasing all or substantially all of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower Collateral (except for a release of Collateral in the case accordance with Section 2.13), releasing any Guarantor (except for a release of a demand under Guarantor in accordance with Section 8.07(g)2.13), and shall not be payable if the assignee is a Federal Reserve Bankor extending or increasing its Revolving Credit Commitment), .
(ve) the consent of the Borrower shall not be required after the occurrence and during the continuance of Notwithstanding any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified other provision set forth in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, time assign and without any requirement to have an Assignment and Assumption executed, assign pledge all or any part portion of its rights under this Agreement Loans to a any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank, provided that no . No such assignment shall release the transferor assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning any Borrower or any of its obligations hereunder. For Subsidiaries in the purposes possession of this Section 8.07(asuch Lender from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the terms “Approved Fund” and “Ineligible Institution” have the following meanings:provisions of Section 11.15.
Appears in 1 contract
Sources: Credit Agreement (Aircastle LTD)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Issuer, the Swingline Lenders and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and AssumptionAcceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower Borrower, the LC Issuers, the Swingline Lenders and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers 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.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). For The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:this
Appears in 1 contract
Assignments and Participations. (a) Each Lender maySubject to the provisions of Section 11.13(j), with after first obtaining the prior written consent approval of the Agent and Borrower, each LC Issuer and the Administrative Agent (which consents shall approval will not be unreasonably withheld or delayed(and which approval from Borrower shall not be required upon the occurrence and during the continuance of an Event of Default), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, each Lender may assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement in accordance with the provisions of this Section (including without limitation all or a portion of its Commitment, Commitment and the Advances Loans owing to it and its participation in Facility LCsit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s 's rights and obligations under this AgreementAgreement and the assignment shall cover the same percentage of such Lender's Commitment and Loans, (ii) unless Agent and Borrower otherwise consent (which consent of Borrower shall not be required upon the occurrence and during the continuance of an Event of Default), the aggregate amount of the Commitment Amount of the assigning Lender being assigned to an Eligible Assignee that is not already a Lender hereunder (provided such Lender was also a Lender on the Closing Date) pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than Five Million Dollars ($5,000,000 or, if less, the entire amount of such Lender’s Commitment, 5,000,000) and shall be an integral multiple of One Million Dollars ($1,000,000 or such Lender’s entire Commitment1,000,000), (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance approval and recording in the Registeracceptance, an Assignment and Assumption, together with Assumption and (iv) Agent shall receive from the assignor or assignors for its sole account a processing and recordation fee of Three Thousand Dollars ($3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g3,000)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance approval and recordingacceptance, from and after upon the effective date specified in each the applicable Assignment and Assumption, (xA) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been validly and effectively assigned to it pursuant to such Assignment and Assumption, have the rights and obligations of a Lender hereunder and (yB) the Lender Lender-assignor thereunder shall, to the extent that rights and obligations hereunder have been validly and effectively assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement.
(b) By executing and delivering an Assignment and Assumption, 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 Assumption, 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 andor any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the REIT, Borrower, any Subsidiary, any Investment Affiliate, or any Agreement Party or the performance or observance by the REIT, Borrower, any Subsidiary, any Investment Affiliate, or any Agreement Party of any of their respective obligations under any Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Article VI or delivered pursuant to Article VI to the case date of such assignment and such other Loan Documents and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption; (iv) such assignee will, independently and without reliance upon 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 appoints and authorizes Agent to take such action as Agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (vi) 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.
(c) Agent shall maintain at its address referred to on the counterpart signature pages hereof a copy of each Assignment and Assumption delivered to and accepted by it and shall record the names and addresses of each Lender and the Commitment of, and principal amount of the Loans owing to, such Lender from time to time. Borrower, Agent and Lenders may treat each Person whose name is so recorded as a Lender hereunder for all purposes of this Agreement.
(d) Upon its receipt of an Assignment and Assumption covering executed by an assigning Lender and an assignee, Agent shall, if such Assignment and Assumption has been properly completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Assumption, (ii) record the information contained therein and (iii) give prompt notice thereof to Borrower. Upon request, Borrower will execute and deliver to Agent an appropriate replacement promissory note or replacement promissory notes in favor of each assignee (and assignor, if such assignor is retaining a portion of its Commitment and Loans) reflecting such assignee's (and assignor's) Pro Rata Share(s) of the Facility. Upon execution and delivery of such replacement promissory notes, the original promissory note or notes evidencing all or the remaining a portion of an assigning Lender’s the Commitments and Loans being assigned shall be canceled and returned to Borrower.
(e) Each Lender may sell participations to one or more banks, finance companies, insurance or other entities in or to all or a portion of its rights and obligations under this AgreementAgreement (including without limitation all or a portion of its Commitment and the Loans owing to it); provided, however, that (i) such Lender's obligations under this Agreement (including without limitation its Commitment to Borrower hereunder) shall remain unchanged, (ii) such Lender shall cease remain solely responsible to be a party the other parties hereto for the performance of such obligations, (although an assigning Lender iii) Borrower, 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 and with regard to any and all payments to be made under this Agreement and (iv) the holder of any such participation shall not be entitled to indemnification pursuant voting rights under this Agreement except that such Participant may have the contractual right in the applicable participation agreement to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, prevent (A) increases in the consent Facility, (B) extensions of the Borrower and Maturity Date (except pursuant to Article III hereof), (C) decreases in the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fundinterest rates described in this Agreement, and (BD) a release of the REIT Guaranty.
(f) Borrower will use reasonable efforts to cooperate with Agent and Lenders in connection with the assignment of interests under this Agreement or the sale of participations herein.
(g) Anything in this Agreement to the contrary notwithstanding, and without the need to comply with any of the formal or procedural requirements of this Agreement, including Section 11.13, any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, time and without any requirement from time to have an Assignment time pledge and Assumption executed, assign all or any part portion of its rights under all or any of the Loan Documents to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from its obligations thereunder. To facilitate any such pledge or assignment, Agent shall, at the request of such Lender, enter into a letter agreement with the Federal Reserve Bank in, or substantially in, the form of the exhibit to Appendix C to the Federal Reserve Bank of New York Operating Circular No 12.
(h) Anything in this Agreement to the contrary notwithstanding, any Lender may assign all or any portion of its rights and obligations under this Agreement to a Federal Reserve BankLender Affiliate of such Lender without first obtaining the approval of Agent and Borrower, provided that (i) at the time of such assignment such Lender is not a Defaulting Lender, (ii) such Lender gives Agent and Borrower at least fifteen (15) days prior written notice of any such assignment; (iii) the parties to each such assignment execute and deliver to Agent an Assignment and Assumption, and (iv) Agent receives from assignor for its sole account a processing fee of Three Thousand Dollars ($3,000).
(i) No Lender shall be permitted to assign, or sell a participation interest in, all or any portion of its rights and obligations under this Agreement to Borrower or any Affiliate of Borrower.
(j) Anything in this Agreement to the contrary notwithstanding, so long as no Event of Default shall have occurred and be continuing, no Lender shall be permitted to enter into an assignment of its rights and obligations hereunder which would result in such Lender holding a Commitment of less than Ten Million Dollars ($10,000,000). In the event Agent ceases to hold a Commitment of less than ten percent (10%) of the Facility, Agent shall resign from the performance of all of its functions and duties hereunder; provided, however, that no such assignment resignation shall release be required during the transferor Lender from any continuance of its obligations hereunder. For the purposes an Event of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:Default.
Appears in 1 contract
Sources: Credit Agreement (Manufactured Home Communities Inc)
Assignments and Participations. (a) Each Lender mayBank may assign, with the prior written consent of the Borrower, each LC Issuer any Issuing Bank and the Administrative Agent (which consents which, in either case, shall not be unreasonably withheld or delayedwithheld), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks banks, financial institutions or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations as a Bank under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Notes held by it in respect of the Committed Rate Advances and its participation in Facility LCsreimbursement obligations of the Borrower in respect of Letters of Credit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s Bank's rights and obligations under this Agreementthe Loan Documents, (ii) the Commitment Amount amount of the Commitments, if any, of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment10,000,000, and shall be an integral multiple of $1,000,000 in excess thereof, or the remaining amount of such Lender’s entire CommitmentBank's Commitments, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Notes subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption3,000; provided, and not by the Borrower (except in the case of a demand under Section 8.07(g))further, and shall not be payable if the assignee is a Federal Reserve Bank)that each Bank may, (v) without the consent of the Borrower or the Agent, assign, as collateral or otherwise, any of its rights under this Agreement and the other Loan Documents (including, without limitation, the right to payment of principal and interest under the Notes) to any Federal Reserve Bank, and such assignment of rights to the Federal Reserve Bank shall not be required after subject to the occurrence conditions and during restrictions set forth in items (i) through (iv) of the continuance immediately foregoing proviso; and provided, further, that each Bank may, without the consent of any Event of Default, and (vibut with prior written notice to) the Borrower shall be deemed to have consented or the Agent, assign, in whole or in part, any of its rights and obligations under this Agreement and the other Loan Documents to any of its Affiliates, and such assignment unless it to Affiliates shall object thereto by written notice not be subject to the Administrative Agent within five conditions and 85 restrictions set forth in items (5i) Business Days after having received notice thereofthrough (iv) of the proviso above. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it pursuant to such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender Bank hereunder and thereunder and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder under the Loan Documents have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement the Loan Documents (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s Bank's rights and obligations under this Agreementthe Loan Documents, such Lender Bank shall cease to be a party hereto hereto).
(although b) By executing and delivering an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to Assignment and Acceptance, the contrary, (A) the consent of the Borrower Bank assignor thereunder and the Administrative Agent shall not be required 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 Bank makes no representation or warranty and assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of any Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Lender to an Affiliate Loan Party of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunderunder any Loan Document or any other instrument or document furnished pursuant hereto or thereto; (iii) such assignee confirms that it has received a copy of each of the Loan Documents, together with copies of the financial statements referred to in Section 5.01(e) 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, any Issuing Bank, such assigning Bank or any other 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 or any other Loan Document; (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 the other Loan Documents as are delegated to the Agent by the terms hereof and thereof, together with such powers 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 the Loan Documents are required to be performed by it as a Bank.
(c) The Agent shall maintain at its address referred to in Section 9.02 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 Banks and the Commitment and principal amount of the Advances owing to, each Bank from time to time (the "Register"). For The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Section 8.07(aAgreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee representing that it is an Eligible Assignee, together with any Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit E, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Committed Rate Notes, new Committed Rate Notes to the order of such Eligible Assignee in an aggregate principal amount equal to the principal amount of Committed Rate Advances owed to it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained any principal amount of Committed Rate Advances hereunder, new Committed Rate Notes to the order of the assigning Bank in an aggregate principal amount equal to such principal amount. Such new Committed Rate Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Committed Rate Notes, shall be dated the effective date of such Assignment and Acceptance, shall consist of Committed Rate Notes payable to the order of such Eligible Assignee and, if the assigning Bank has retained ownership of any Committed Rate Advances hereunder, the assigning Bank in the appropriate principal amounts, and shall otherwise be in substantially the forms required by this Agreement.
(e) Each Bank may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Commitments, the Notes held by it and reimbursement obligations of the Borrower in respect of Letters of Credit); provided, however, that (i) such Bank's obligations under the Loan Documents (including, without limitation, its Commitments to the Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of any such Notes for all purposes of the Loan Documents, and (iv) the Borrower, the Agent, each Issuing Bank and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under the Loan Documents; provided, further, that, to the extent of any such participation (unless otherwise stated therein and subject to the preceding proviso), the terms “Approved Fund” and “Ineligible Institution” assignee or purchaser of such participation shall, to the fullest extent permitted by law, have the following meanings:same rights and benefits hereunder as it would have if it were a Bank hereunder; and provided, further, that each such participation shall be granted pursuant to an agreement providing that the purchaser thereof shall not have the right to consent or object to any action by the selling Bank (who shall retain such right) other than an action which would (i) reduce principal of or interest on any Advance or fees in which such purchaser has an interest or (ii) postpone any date fixed for payment of principal of or interest on any such Advance or such fees.
(f) The Borrower agrees that any Bank purchasing a participation from another Bank pursuant to Section 2.14 or 9.08(e) may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Bank were the direct creditor of the Borrower in the amount of such participation.
(g) Notwithstanding any other provision of this Section 9.08, each Designated Bidder may assign to one or more Eligible Assignees any Competitive Bid Note.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances Loans owing to it and its participation in Facility LCsthe Note or Notes, if any, held by it); provided that provided, however, that:
(i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement (other than any Competitive Bid Loans or any Swing Loans), it being understood that a Lender shall be permitted to assign to any of the assigning its Affiliates all or any portion of such Lender’s rights and obligations under this Agreement, with respect to a Designated Borrower that is not incorporated in the United States,
(ii) the Commitment Amount amount of the Commitments of the assigning Lender being assigned pursuant to each such assignment other than an assignment to another Lender or an Affiliate of a Lender (in each case, determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, in excess thereof,
(iii) each such assignment shall be to an Eligible Assignee, and (unless such assignment shall be to an Affiliate of the assigning Lender or to an existing Lender) the Company, the Administrative Agent, the Issuing Banks and the Swing Loan Banks shall have consented to such assignment (which consents shall not be unreasonably withheld or delayed); provided that (x) the consent of the Company shall not be required if an Event of Default has occurred and is continuing at the time of such assignment, (y) the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof, and (z) the Company may reasonably withhold its consent to an assignment if, as of the effective date of such assignment, such assignment would increase the amount of Taxes or Other Taxes payable under Section 2.12,
(iv) after giving effect to such assignment, the assigning Lender together with all Affiliates of such Lender (collectively, each a “Lender Group”) shall continue to hold no less than 25% of any Commitments held by such Lender Group on, or acquired by such Lender Group after, the Effective Date (and the Loans owing to such Lender Group), unless the Company shall otherwise agree; provided that this clause (iv) shall not apply if an Event of Default pursuant to Section 7.01(a) has occurred and is continuing at the time of such assignment,
(v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable paid by one either the assigning Lender or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and assignee,
(vi) unless the Borrower Company and the Administrative Agent otherwise agree, the Termination Date of the assignee under each such assignment shall be deemed to have consented be the then Final Termination Date, and
(vii) no assignment shall be made to (A) any such assignment unless it shall object thereto by written notice to Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the Administrative Agent within five foregoing Persons described in this clause (5A), (B) Business Days after having received notice thereofa natural person or (C) any Borrower or any Affiliate of any Borrower. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shallshall relinquish its rights and be released from its obligations under this Agreement, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance. Notwithstanding anything to the contrary contained herein except for the conditions set for in clause (iv) of this Section 9.07(a), relinquish any Bank (a “Granting Bank”) may grant to a special purpose funding vehicle (a “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Company, the option to provide to a Borrower all or any part of a Loan that such Granting Bank would otherwise be obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Loan were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 9.07 except for the conditions set forth in clause (iii) of this Section 9.07(a), any SPC may (i) with notice to, but without the prior written consent of, the Company and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its rights interests in any Loans to the Granting Bank or to any Eligible Assignee (consented to by the Company and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This paragraph may not be released from amended without the written consent of the SPC.
(b) 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement andor any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.01 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 any 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers 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.
(c) Each New Lender shall submit a New Commitment Acceptance in accordance with the provisions of Section 2.06(b). Upon the execution, delivery, acceptance and recording of a New Commitment Acceptance, from and after the Increase Date related thereto such New Lender shall be a party hereto and have the rights and obligations of a Lender hereunder having the Commitment specified therein (or such lesser Commitment as shall be allocated to such New Lender in accordance with Section 2.06(b)(vi) or 2.15(d)). By executing and delivering a New Commitment Acceptance, the New Lender thereunder confirms to and agrees with the other parties hereto as follows: (i) such New Lender hereby agrees that no Lender has made any representation or warranty, or assumes any responsibility with respect to, (x) any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto or (y) the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (ii) such New Lender confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such New Commitment Acceptance; (iii) such New Lender will, independently and without reliance upon any 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 Agreement; (iv) such New Lender confirms that it is an Eligible Assignee; (v) such New Lender appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such New Lender 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 Administrative Agent, acting solely for this purpose as an agent of each Borrower, shall maintain at its address referred to in Section 9.02 a copy of each Assignment and Acceptance and each New Commitment Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitments of, and principal amount (and stated interest) of the Loans owing to, each Lender from time to time (the “Register”). The entries in the case Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. In addition, the Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available for inspection by the Company or any Lender at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall provide the Company with a copy of the Register upon request.
(i) Upon its receipt of an Assignment and Assumption covering all Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Loan Note or Notes subject to such assignment, the remaining Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C-1 hereto, (1) accept such Assignment and Acceptance, (2) record the information contained therein in the Register and (3) give prompt notice thereof to the Company. Within five Business Days after its receipt of such notice, the relevant Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for any surrendered Revolving Loan Note or Notes a new Revolving Loan Note to such Eligible Assignee in an amount equal to the Commitments assumed by it pursuant to such Assignment and Acceptance and a new Revolving Loan Note to the assigning Lender in an amount equal to the Commitments retained by it hereunder. Such new Revolving Loan Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Loan Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A‑l hereto. Such surrendered Revolving Loan Note or Notes shall be marked “canceled” and shall be returned promptly to the Company.
(ii) Upon its receipt of a New Commitment Acceptance executed by a New Lender representing that it is an Eligible Assignee, the Administrative Agent shall, if such New Commitment Acceptance has been completed and is in substantially the form of Exhibit C-3 hereto, (1) accept such New Commitment Acceptance, (2) record the information contained therein in the Register and (3) give prompt notice thereof to the Company. Within five Business Days after its receipt of such notice if requested by such New Lender, the relevant Borrower, at its own expense, shall execute and deliver to the Administrative Agent a new Revolving Loan Note to such New Lender in an amount equal to the Commitments assumed by it pursuant to such New Commitment Acceptance. Such new Revolving Loan Note shall be dated the relevant Increase Date and shall otherwise be in substantially the form of Exhibit A‑l hereto.
(f) Each Lender may sell participations to one or more banks or other entities (other than a natural person, a Defaulting Lender or a Borrower or any Affiliate of a Borrower) in or to a portion of an assigning its rights and obligations under this Agreement (including, without limitation, a portion of its Commitments, the Loans owing to it and the Note or Notes, if any, held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitments hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrowers, the Administrative Agent, the Issuing Banks 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, (iv) except in the case of a participation involving a Lender and one of its Affiliates (and this exception shall apply only so long as the participant remains an Affiliate of such Lender Lender), the parties to each such participation shall cease execute a participation agreement in substantially the form of the Participation Agreement, (v) each participant (x) shall be required to complete and deliver the documentation required under Section 2.12(e) to the participating Lender, (y) agrees to be a party hereto subject to the provisions of Section 2.12(g) as if it were an assignee, and (although an assigning Lender z) shall continue to not be entitled to indemnification pursuant to receive any greater payment under Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required 3.05 or 2.12 with respect to any assignment by any participation than its participating Lender would have been entitled to an Affiliate of receive, except to the extent such Lender or entitlement to another Lender or to an Approved Fundreceive a greater payment results from a change in law that occurs after the participant acquired the applicable participation, and (Bvi) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:each Le
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrowerand so long as no Default shall have occurred and be continuing, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g2.08(e) shall or 9.01(b) upon at least five Business Days' notice to such Lender and the extent required by such SectionAdministrative Agent will, assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of the assigning Facility (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date), (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender’s , an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender's rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire 1,000,000 (or such lesser amount of such Lender’s Commitment, and as shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentapproved by the Administrative Agent) under the Facility for which a Commitment is being assigned, (iii) each partial assignment shall be made as an assignment of a proportionate part of all of the assigning Lender's rights and obligations under this Agreement with respect to the Advances or the Commitment assigned, (iv) each such assignment shall be to an Eligible Assignee, (ivv) each such assignment made as a result of a demand by the Borrower pursuant to Section 2.08(e) or 9.01(b) shall be arranged by the Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (vi) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to Section 2.08(e) or 9.01(b) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and (viii) the Administrative Agent shall have received a processing and recordation fee of $3,500 (which fee, in the event such assignment is made as a result of a demand by the Borrower pursuant to Section 2.08(e) or 9.01(b), shall be payable by one the Borrower and/or the relevant Eligible Assignee); provided that only on such fee shall be payable in connection with simultaneous assignments by or to two or more of the parties to the Assignment and Assumption, and not by the Borrower related Approved Funds.
(except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (vb) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AssumptionAcceptance, (xi) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (yii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Sections 2.08, 2.10 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all or of the remaining portion of an assigning Lender’s '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, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (although 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 any Loan Document or any other instrument or document furnished pursuant thereto 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, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan 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 most recent financial statements referred to in Section 4.01 or delivered pursuant to Section 5.03 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 any 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 each 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 such Agent by the terms hereof and thereof, 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at its address referred to in Section 9.02 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 Commitment under the Facility of, and principal amount of the Advances owing under the Facility to, the 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 Borrower, the Agents 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 Borrower or any Agent 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 (if any) subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes (if any) a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under the Facility pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Note or Notes prior to such Assignment and Acceptance has retained a Commitment hereunder under the Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment 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 form of Exhibit A hereto.
(f) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitments) 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 Loan Parties, the Agents 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 and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Advances 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 Advances 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 or the value of the Guaranties. The Borrower agrees that each participant shall be entitled to indemnification the benefits of Sections 2.09, 2.10, 8.04 and 9.04(b) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section. To the extent permitted by law, each participant also shall be entitled to the benefits of Section 8.04(c))9.05 as though it were a Lender, provided such participant agrees to be subject to Section 2.11 as though it were a Lender. A participant shall not be entitled to receive any greater payment under Sections 2.08 and 2.10 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, unless the sale of the participation to such participant is made with the Borrower's prior written consent.
(g) Any Lender may, in connection with any assignment, pledge or participation or proposed assignment, pledge or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Loan Parties furnished to such Lender by or on behalf of the Loan Parties; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree 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 and the other Loan Documents (including, without limitation, the Advances owing to it and the Note or Notes (if any) held by it) in favor of any Federal Reserve Bank.
(i) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may create a security interest in all or any portion of the Advances owing to it and any Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.
(j) Notwithstanding anything to the contrary contained herein, any Lender (a "GRANTING LENDER") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an "SPC") the option to provide all or any part of any Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by the Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.08 and 2.10 (or any other increased costs protection provision) and (iii) the Granting Lender shall for all purposes, including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Section 8.07(aAgreement, any SPC may (i) to the contrarywith notice to, (A) the but without prior consent of of, the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without paying any requirement to have an Assignment and Assumption executedprocessing fee therefor, assign all or any portion of its interest in any Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no whose Advances are being funded by any SPC at the time of such assignment shall release the transferor Lender from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:amendment.
Appears in 1 contract
Assignments and Participations. (a) The Loan Documents shall be binding upon and inure to the benefit of the Borrower, the Lenders, the Issuing Bank, the Administrative Agent, all future holders of the Notes and the Reimbursement Obligations, and their respective successors and assigns, except that the Borrower may not assign, delegate or transfer any of its rights or obligations under the Loan Documents without the prior written consent of the Administrative Agent, the Issuing Bank and each Lender.
(b) Each Lender mayshall have the right at any time, upon written notice to the Administrative Agent of its intent to do so, to sell, assign, transfer or negotiate all or any part of its rights and obligations under the Loan Documents to one or more of its affiliates, to one or more of the other Lenders (or to affiliates of such other Lenders) or, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent and the Issuing Bank (which consents shall not be unreasonably withheld or delayedand, in the case of the Borrower, shall not be required upon the occurrence and during the continuance of an Event of Default), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Sectionsell, assign to one assign, transfer or more banks or other entities (other than an Ineligible Institution) negotiate all or a portion any part of its rights and obligations under this Agreement (including all or a portion of its Commitmentthe Loan Documents to any Eligible Assignee, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment sale, assignment, transfer or negotiation (other than sales, assignments, transfers or negotiations (x) to its affiliates or (y) of its entire interest) shall be in a minimum amount of a constant, $5,000,000 and not a varying, percentage whole multiples of all of the assigning Lender’s rights $1,000,000 in excess thereof and obligations under this Agreement, (ii) in the Commitment Amount case of each Lender other than BNY, it shall pay a fee to the assigning Lender being assigned pursuant to each such assignment (determined as of Administrative Agent in the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment$3,500. For each assignment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofAcceptance Agreement. Upon such execution, delivery, acceptance and recordingthe recording thereof by the Administrative Agent, from and after the effective date specified in each such Assignment and AssumptionAcceptance Agreement, (x) 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 AssumptionAcceptance Agreement, have the rights and obligations of a assignor Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and shall be released from its obligations under this Agreement and, in the case Loan Documents. The Borrower agrees upon written request of an Assignment and Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect and at the Borrower's expense to any assignment by any Lender execute and deliver to an Affiliate such assignee, Notes, dated the effective date of such Lender Assignment and Acceptance Agreement. Upon any such sale, assignment or to another Lender or to an Approved Fundother transfer, the Commitment Amounts set forth in Exhibit A shall be adjusted accordingly by the Administrative Agent and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or a new Exhibit A shall be distributed by the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign .
(c) Each Lender may grant participations in all or any part of its rights under the Loan Documents to one or more Eligible Assignees, provided that (i) its obligations under the Loan Documents shall remain unchanged, (ii) it shall remain solely responsible to the other parties to the Loan Documents for the performance of such obligations, (iii) the Borrower, the Issuing Bank, the Administrative Agent and the Lenders, as applicable, shall continue to deal solely and directly with it in connection with its rights and obligations under the Loan Documents, (iv) no sub-participations shall be permitted and (v) the voting rights of any holder of any participation shall be limited to the matters described in Section 11.1
(a) The Borrower acknowledges and agrees that any such participant shall for purposes of Sections 3.5, 3.6, 3.7, 3.8, 3.9, 3.10 and 3.11, be deemed to be a "Lender"; provided, however, the Borrower shall not, at any time, be obligated to pay any participant in any interest of the Issuing Bank or any Lender hereunder any sum in excess of the sum which the Borrower would have been obligated to pay to the Issuing Bank or such Lender, as the case may be, in respect of such interest had the Issuing Bank or such Lender, as the case may be, not sold such participation.
(d) If any (i) assignment is made pursuant to subsection (b) above or (ii) any participation is granted pursuant to subsection (c) above, to any Person that is not a U.S. Person, such Person shall furnish such certificates, documents or other evidence to the Borrower and the Administrative Agent in the case of clause (i), and to the Borrower and the Issuing Bank or the Lender which sold such participation, as the case may be, in the case of clause (ii), as shall be required by Section 3.10(e).
(e) No Lender shall, as between and among the Borrower, the Issuing Bank, the Administrative Agent and such Lender, as the case may be, be relieved of any of its obligations under the Loan Documents as a result of any sale, assignment, transfer or negotiation of, or granting of participations in, all or any part of its rights and obligations under the Loan Documents, except that it shall be relieved of its obligations to the extent of any such sale, assignment, transfer, or negotiation of all or any part of its rights and obligations under the Loan Documents pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary contained in this Agreement Section, the Issuing Bank or any Lender may at any time or from time to time pledge or assign all or any portion of its rights under the Loan Documents to a Federal Reserve Bank, provided that no any such assignment shall not release the transferor Lender such assignor from any of its obligations hereunder. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:thereunder.
Appears in 1 contract
Assignments and Participations. (a) Each The Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent Borrower (which consents shall not be unreasonably withheld or delayedwithheld), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) another Person all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of the Commitment, the Advances and the Note); PROVIDED, HOWEVER, that no such consent by the Borrower shall be required in the case of any assignment to an Affiliate of the Lender; and PROVIDED, FURTHER, that any such partial assignment shall be in an amount at least equal to $5,000,000 or in an integral multiple of $1,000,000 in excess thereof.
(b) The Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note); provided PROVIDED, HOWEVER, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its 's obligations under this Agreement and(including, without limitation, its Commitment hereunder) shall remain unchanged.
(c) The Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 7.05, disclose to the case assignee or participant or proposed assignee or participant, any information relating to the Borrower or any of an Assignment and Assumption covering all its Subsidiaries furnished to the Lender by or on behalf of the remaining portion of an assigning Lender’s rights and obligations under Borrower.
(d) Notwithstanding any other provision set forth in this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement to a (including, without limitation, the Advances and the Note) in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Board of Governors of the Federal Reserve System.
(e) All amounts payable by the Borrower to the Lender from any of its obligations hereunder. For the purposes of this Section 8.07(aunder Sections 2.08(e), 2.10, 2.11, 2.12 and 7.04(b) shall be determined as if the terms “Approved Fund” Lender had not sold or agreed to sell any participations in the Advances or the Note or its Commitment and “Ineligible Institution” as if the Lender were funding each of such Advances and Commitment in the same way that it is funding the portion of such Advances and Commitment in which no participations have the following meanings:been sold.
Appears in 1 contract
Sources: Credit Agreement (M&t Bank Corp)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Administrative Agent and the Administrative Agent Borrowers (which consents shall each such consent not to be unreasonably withheld or delayed)delayed and such consent of the Borrowers not to be required if an Event of Default under Section 6.01(a) or (e) has occurred and is continuing or if the applicable assignment is to a Lender or an Affiliate of a Lender) and, and if demanded by the Borrower Administrative Agent or the Borrowers (w) pursuant to Section 8.07(g8.01(b), (x) shall following a request for a payment to the extent required or on behalf of such Lender under Section 2.09 or 2.12, (y) following a notice given by such SectionLender pursuant to Section 2.10 or (z) if such Lender is a Defaulting Lender, in each case upon at least ten Business Days’ notice to such Lender and the Administrative Agent, will, assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances unused Commitments and Loans owing to it and its participation in Facility LCsany Notes held by it); , provided that the Borrowers may make demand with respect to a Lender that has given notice pursuant to Section 2.10 only if the Borrowers make such demand of all Lenders similarly situated that have given such notice and provided further that, (i) for any assignment during the period from the date hereof to (and including) the earlier of (x) February 28, 2009 and (y) the Funding Date, no assignment shall be permitted to any Person without the consent of the Borrowers acting in their sole discretion, unless an Event of Default has occurred and is continuing or unless the applicable assignment is to a Lender or an Affiliate of a Lender, (ii) each such assignment shall be of an equal percentage of the unused Commitment of and the outstanding Loans owing to the assigning Lender, (iii) except in the case of an assignment to a constantPerson that, and not immediately prior to such assignment, was a varying, percentage Lender or an Affiliate of a Lender or an assignment of all of the assigning a Lender’s rights and obligations under this Agreement, (ii) the unused Commitment Amount of and the outstanding principal amount of the Loans owing to the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 25,000,000 or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof, (iiiiv) each such assignment shall be to an Eligible Assignee, (ivv) each such assignment made as a result of a demand by the Borrowers shall be arranged by the Borrowers after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (vi) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrowers unless and until such Lender shall have received one or more payments from the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Loans owing to such Lender, together with accrued interest thereon to the date of payment of such principal and all other amounts that have accrued and are payable to such Lender under this Agreement, (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 and any Notes subject to such assignment (which shall be payable by one or more of provided that the parties Administrative Agent may, in its sole discretion, elect to the Assignment waive such processing and Assumption, and not by the Borrower (except recordation fee in the case of a demand under Section 8.07(g)any assignment), and (viii) the assignee, if it shall not be payable if the assignee is a Federal Reserve Bank)Lender, (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice deliver to the Administrative Agent within five an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (5which may contain material non-public information about the Borrowers and their respective Subsidiaries or their respective securities) Business Days after having received notice thereofwill be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) 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 Assumption, have (in addition to any such rights and obligations theretofore held by it) the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights other than rights of indemnification under Section 8.04 or otherwise relating to a time prior to the effective date of such Assignment and Assumption and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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).
(b) By executing and delivering an Assignment and Assumption, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (although an i) other than as provided in such Assignment and Assumption, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e), the most recent financial statements required to be delivered pursuant to Section 5.01(i) 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 Assumption; (iv) such assignee will, independently and without reliance upon the Administrative 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 Affiliate Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Assumption executed by an assigning Lender, an assignee representing that it is an Eligible Assignee and the Borrowers, together with any Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto or is in such other form approved by the Administrative Agent and, so long as no Event of Default under Section 6.01(a) or (e) has occurred and is continuing, the Borrowers (such approval of the Borrowers not to be unreasonably withheld or delayed), (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers.
(d) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the unused Commitment of and the principal amount of the Loan owing to each Lender from time to time (the “Register”). Except as otherwise provided in Section 2.14(c), the entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Administrative 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 any Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other entities (other than any Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its unused Commitment and Loans owing to it and any Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender or to another Lender or to an Approved Fundshall remain the obligee of any such Loan for all purposes of this Agreement, (iv) the Borrowers, the Administrative 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 and (Bv) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Note, or any consent to any departure by any Borrower therefrom, except that a Lender may agree with a participant as to the manner in which the Lender shall exercise the Lender’s rights to approve any amendment, waiver or consent to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.
(f) Any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executedor the Borrowers, assign create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Loans owing to it, and any Note or Notes held by it and) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, provided however, that no such pledge or assignment shall release the transferor such Lender from any of its obligations hereunder. For hereunder or have the purposes effect of this Section 8.07(a)increasing the costs payable by the Borrowers.
(g) Notwithstanding anything to the contrary in subsection (a) above, any Lender may at any time, without the consent of, but with notice to, the terms “Approved Fund” and “Ineligible Institution” Borrowers, assign all or part of its rights or obligations under this Agreement to any Affiliate of such Lender; provided, however, that no such assignment shall have the following meanings:effect of increasing the costs payable by the Borrowers.
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Assignments and Participations. (a) Each Lender mayBank may assign, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (which consents which, in either case, shall not be unreasonably withheld or delayedand in the case of the Borrower shall not be required during the continuation of an Event of Default), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks banks, financial institutions or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations as a Bank under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Notes held by it in respect of the Revolving Advances and its participation in Facility LCsreimbursement obligations of the Borrower in respect of Letters of Credit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, the same percentage of all of the assigning Lender’s Bank's rights and obligations under this Agreementthe Loan Documents, (ii) the Commitment Amount amount of the Commitments, if any, of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment5,000,000, and shall be an integral multiple of $1,000,000 in excess thereof, or the remaining amount of such Lender’s entire CommitmentBank's Commitments, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Notes subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption3,000; provided further that each Bank may, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) without the consent of the Borrower or the Agent, assign, as collateral or otherwise, any of its rights under this Agreement and the other Loan Documents (including, without limitation, the right to payment of principal and interest under the Notes) to any Federal Reserve Bank, and such assignment of rights to the Federal Reserve Bank shall not be required after subject to the occurrence conditions and during restrictions set forth in items (i) through (iv) of the continuance immediately foregoing proviso; and provided further that each Bank may, without the consent of any Event of Default, and (vibut with prior written notice to) the Borrower shall be deemed to have consented or the Agent, assign, in whole or in part, any of its rights and obligations under this Agreement and the other Loan Documents to any of its Affiliates, and such assignment unless it to Affiliates shall object thereto by written notice not be subject to the Administrative Agent within five 76 71 conditions and restrictions set forth in items (5i) Business Days after having received notice thereofthrough (iv) of the proviso above. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it pursuant to such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender Bank hereunder and thereunder and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder under the Loan Documents have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement the Loan Documents (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s Bank's rights and obligations under this Agreementthe Loan Documents, such Lender Bank shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Bank assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue Bank makes no representation or warranty and assumes no responsibility with respect to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) any statements, warranties or representations made in or in connection with any Loan Document, (B) the consent due execution, legality, validity, enforceability, genuineness or sufficiency of any Loan Document or any other instrument or document furnished pursuant thereto, (C) the Borrower value of any Collateral, or (D) the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Bank makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to the financial condition of any assignment Loan Party or the performance or observance by any Lender to an Affiliate Loan Party of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunderunder any Loan Document or any other instrument or document furnished pursuant hereto or thereto; (iii) such assignee confirms that it has received a copy of each of the Loan Documents, together with copies of the financial statements referred to in Section 5.01(e) 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, any Issuing Bank, such assigning Bank or any other 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 or any other Loan Document; (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 the other Loan Documents as are delegated to the Agent by the terms hereof and thereof, together with such powers 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 the Loan Documents are required to be performed by it as a Bank.
(c) The Agent shall maintain at its address referred to in Section 9.02 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 Banks and the Commitment and principal amount of the Advances owing to, each Bank from time to time (the "Register"). For The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Section 8.07(aAgreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee representing that it is an Eligible Assignee, together with any Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute 77 72 and deliver to the Agent in exchange for the surrendered Revolving Notes, new Revolving Notes to the order of such Eligible Assignee in an aggregate principal amount equal to the principal amount of Revolving Advances owed to it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained any principal amount of Revolving Advances hereunder, new Revolving Notes to the order of the assigning Bank in an aggregate principal amount equal to such principal amount. Such new Revolving Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Notes, shall be dated the effective date of such Assignment and Acceptance, shall consist of Revolving Notes payable to the order of such Eligible Assignee and, if the assigning Bank has retained ownership of any Revolving Advances hereunder, the assigning Bank in the appropriate principal amounts, and shall otherwise be in substantially the forms required by this Agreement.
(e) Each Bank may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Commitments, the Notes held by it and reimbursement obligations of the Borrower in respect of Letters of Credit); provided, however, that (i) such Bank's obligations under the Loan Documents (including, without limitation, its Commitments to the Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of any such Notes for all purposes of the Loan Documents, and (iv) the Borrower, the Agent, each Issuing Bank and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under the Loan Documents; provided further that, to the extent of any such participation (unless otherwise stated therein and subject to the preceding proviso), the terms “Approved Fund” and “Ineligible Institution” assignee or purchaser of such participation shall, to the fullest extent permitted by law, have the following meanings:same rights and benefits hereunder as it would have if it were a Bank hereunder; and provided further that each such participation shall be granted pursuant to an agreement providing that the purchaser thereof shall not have the right to consent or object to any action by the selling Bank (who shall retain such right) other than an action which would (i) reduce principal of or interest on any Advance or fees in which such purchaser has an interest or (ii) postpone any date fixed for payment of principal of or interest on any such Advance or such fees.
(f) The Borrower agrees that any Bank purchasing a participation from another Bank pursuant to Section 2.13 or 9.08(e) may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Bank were the direct creditor of the Borrower in the amount of such participation.
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Assignments and Participations. (a) (a) Each Lender Bank may, with upon obtaining the prior written consent of the BorrowerAgent, each LC Issuer Issuing Bank and the Administrative Agent Swing Line Bank (which consents consent by any such party shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) financial institutions all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Letter of Credit Participations, Swing Line Participations and Note or Notes held by it); provided provided, however, that (i) (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning LenderBank’s rights and obligations under this Agreementso assigned, (ii) (ii) the amount of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) may be in the amount of such Bank’s entire Commitment but otherwise shall in no event not be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, 10,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentunless the Company and the Agent otherwise consent, (iii) (iii) each such assignment shall be to an Eligible Assignee, (iv) (iv) the parties to each such assignment shall (A) (A) execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register, an Assignment and Assumption, together with Acceptance and (B) (B) deliver to the Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of 3,500; provided that the parties Agent may, in its sole discretion, elect to the Assignment waive such processing and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank)recording fee, (v) (v) if no Event of Default under clause (a), (b), (d) (with respect to an Event of Default under Section 5.03 only) or (f) of Section 6.01 has occurred and is continuing, the prior written consent of the Borrower Company (which consent shall not be unreasonably withheld or delayed) shall be required after for an assignment by a Bank to an assignee which is not a Bank or an Affiliate or Approved Fund of a Bank; provided that the occurrence and during the continuance of any Event of Default, and (vi) the Borrower Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five ten (510) Business Days after having received notice thereof, and (vi) (vi) consent of the Agent shall not be required for an assignment by a Bank to an assignee which is a Bank or an Affiliate or Approved Fund of a Bank. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) the assignee thereunder which effective date shall be a party hereto andat least two (2) Business Days after the execution thereof, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)hereto). Notwithstanding anything contained in this Section 8.07(a
(b) to By executing and delivering an Assignment and Acceptance, the contrary, (A) the consent of the Borrower Bank assignor thereunder and the Administrative Agent shall not be required assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) (i) other than as provided in such Assignment and Acceptance, such assigning 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) (ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or any Borrowing Subsidiary or the performance or observance by the Company or any Borrowing Subsidiary of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) or 5.01(b) 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) (iv) such assignee will, independently and without reliance upon the Agent, such assigning Bank or any other 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) (v) such assignee confirms that it is an Eligible Assignee; (vi) (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 as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) (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 Bank.
(c) The Agent, acting for this purpose as a non-fiduciary agent of the Company, shall maintain at its address referred to in Section 9.02 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 Banks and the Issuing Banks and the Commitment of, and principal amount of the Advances owing to, each Bank and the amount of the Letter of Credit Reimbursement Obligations owing to each Issuing Bank from time to time (the “Register”). The Agent (or its designee) shall also reflect in the Register the transfer of any portion of any Bank’s interest in the Notes, any Advances not evidenced by a Note, any Letter of Credit Reimbursement Obligation or any other obligations hereunder (collectively, the “Obligations”), and the Agent shall retain a copy of the assignment transferring the Obligations for the registration or transfer of the Obligations, and shall enter the names and addresses of the transferees of the Obligations. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent, the Banks and the Issuing Banks shall treat each Person whose name is recorded in the Register as a Bank or an Issuing Bank, as applicable, hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers at any reasonable time and from time to time upon reasonable prior notice. The Obligations are registered obligations and the right, title and interest of any Bank or Issuing Bank and/or its assignees in and to such Obligations shall be transferable only upon notation of such transfer in the Register (and each Note shall expressly so provide). This Section 9.08(c) shall be construed so that the Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related Treasury Regulations and solely for this purpose, the Agent (or its designee) shall be the Company’s agent for purposes of maintaining the Register and notations of transfer in the Register.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee representing that it is an Eligible Assignee, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C-1 hereto, (i) (i) accept such Assignment and Acceptance, (ii) (ii) record the information contained therein in the Register and (iii) (iii) give prompt notice thereof to the Borrowers. Each party hereto agrees that (a) an assignment made pursuant to Section 2.21 may be effected pursuant to an Assignment and Acceptance executed by the Company, the Agent and the assignee and (b) the Bank required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to use commercially reasonable efforts to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Bank, provided, further that any such documents shall be without recourse to or warranty by the parties thereto.
(e) Each Bank may sell participations to one or more banks or other entities (other than a Defaulting Bank) in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it and the Letter of Credit Participations, Swing Line Participations and Note or Notes held by it); provided, however, that (i) (i) such Bank’s obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) shall remain unchanged, (ii) (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) (iii) such Bank shall remain the holder of any such Note and Letter of Credit Participations and Swing Line Participations and the maker of any Advance for all purposes of this Agreement, (iv) (iv) the Borrowers, the Agent, any Issuing Bank and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and (v) (v) any agreement between such Bank and any participant in connection with such participating interest shall not restrict such Bank’s right to agree to any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Lender Borrower therefrom, except (to the extent such participant would be affected thereby) a reduction of the principal of, or interest on, any Advance or postponement of any date fixed for payment thereof or a release of the Company’s guaranty obligations pursuant to Article 8. Each Bank that sells a participation shall, acting solely for this purpose as an Affiliate agent of the applicable Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the obligations under this Agreement (the “Participant Register”); provided that no Bank shall have any obligation to disclose any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under this Agreement) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such Lender or participation for all purposes of this Agreement notwithstanding any notice to another Lender or the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(f) The Company and each Borrower agree that each participant shall be entitled to the benefits of Sections 2.15 and 2.20 (subject to the requirements and limitations therein, including the requirements under Section 2.20(f) (it being understood that the documentation required under Section 2.20(f) shall be delivered to the participating Bank)) to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to paragraph (a) of this Section 9.08; provided that such participant (A) agrees to be subject to the provisions of Sections 2.20(i) and 2.21 as if it were an Approved Fund, assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any Lender may greater payment under Sections 2.15 or 2.20, with respect to any participation, than its participating Bank would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation.
(g) Notwithstanding any other provisions set forth in this Agreement, any Bank at any timetime may assign, without the consent of the Borroweras collateral or otherwise, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign all or any part of its rights (including, without limitation, rights to payments of principal of and/or interest on the Advances) under this Agreement to a any Federal Reserve BankBank or any central bank having jurisdiction over such Bank without notice to or consent of the Company, provided that no such assignment shall release any Borrowing Subsidiary, any other Bank or the transferor Lender from any of its obligations hereunderAgent. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:
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Assignments and Participations. (a) Each Lender maymay sell, with the prior written consent of the Borrowertransfer, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld negotiate or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) Eligible Assignees all or a portion of its rights and obligations under this Agreement hereunder (including all or a portion of its Commitmentrights and obligations with respect to the Bridge Loans; provided, the Advances owing to it and its participation in Facility LCs); provided however, that (i) each such assignment shall be of a constant, and not a varying, cover the same percentage of all of the assigning such Lender’s rights and obligations under this Agreement's Bridge Loans, (ii) the Commitment Amount of the assigning Lender aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event (if less than the Assignor's entire interest) be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 in excess thereof, except, in either case, (A) with the consent of the Administrative Agent and the Borrower or (B) if such Lender’s entire Commitment, assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender and (iii) each if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to an Eligible Assigneethe prior consent of the Administrative Agent and the Borrower (which consent shall not be unreasonably withheld or delayed); and provided further that, notwithstanding any other provision of this Section 10.2, the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(ivb) the The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Registerrecording, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofAcceptance. Upon such the execution, delivery, acceptance and recordingrecording of any Assignment and Acceptance and, other than in respect of assignments made pursuant to Section 2.13 and 10.1(c), the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $4,000 from and after the effective date specified in each such Assignment and AssumptionAcceptance, (xi) the assignee thereunder shall be become a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it such assignee pursuant to such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder and thereunder, and (yii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder under this Agreement have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (except for those surviving the payment in full of the Obligations) and be released from its obligations under this Agreement the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Assumption Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreementthe Loan Documents, such Lender shall cease to be a party hereto hereto).
(although c) The Administrative Agent shall maintain at its address referred to in Section 10.8 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording of the names and addresses of the Lenders and the Commitments of and principal amount of the Bridge Loans owing to each Lender from time to time (the "Register"). Any assignment pursuant to this Section 10.2 shall not be effective until such assignment is recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender for all purposes of this Agreement. The Register shall be available for inspection by the Borrower, the Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Notwithstanding anything to the contrary contained in clause (b) above, the Bridge Loans are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Bridge Loans shall be transferable only upon notation of such transfer in the Register. This Section 10.2 shall be construed so that the Bridge Loans are at all times maintained in "registered form" within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as the Borrower's agent for purposes of maintaining such notations of transfer in the Register.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender shall continue and an assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to be entitled the Borrower.
(f) In addition to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained the other assignment rights provided in this Section 8.07(a10.2, each Lender may (i) grant to a Special Purpose Vehicle the option to make all or any part of any Bridge Loan that such Lender would otherwise be required to make hereunder and the exercise of such option by any such Special Purpose Vehicle and the making of Bridge Loans pursuant thereto shall satisfy (once and to the contraryextent that such Bridge Loans are made) the obligation of such Lender to make such Bridge Loans thereunder, provided, however, that (x) such Special Purpose Vehicle shall have other rights or obligations under this Agreement or any of the other Loan Documents other than the grant of such option, (y) nothing herein shall constitute a commitment or an offer to commit by such Special Purpose Vehicle to make Bridge Loans hereunder and (z) no such Special Purpose Vehicle shall be liable for any indemnity or other Obligation (other than the making of Bridge Loans for which such Special Purpose Vehicle shall have exercised an option, and then only in accordance with the relevant option agreement); and (ii) assign, as collateral or otherwise, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Bridge Loans), to (A) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, (B) any trustee for the benefit of the holders of such Lender's Securities and without (C) to any requirement Special Purpose Vehicle to have which such Lender has granted an Assignment option pursuant to clause (i) above; and Assumption executedprovided, assign all or any part of its rights under this Agreement to a Federal Reserve Bankhowever, provided that no such assignment or grant permitted by the foregoing clauses (i) and (ii) shall release the transferor such Lender from any of its obligations hereunder. For Each party hereto acknowledges and agrees that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any such Special Purpose Vehicle, such party shall not institute against, or join any other Person in instituting against, any Special Purpose Vehicle that has been granted an option pursuant to this clause (f) any bankruptcy, reorganization, insolvency or liquidation proceeding (such agreement shall survive the payment in full of the Obligations).
(g) Each Lender may sell participations to one or more Persons in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Bridge Loans). The terms of such participation shall not, in any event, require the participant's consent to any amendments, waivers or other modifications of any provision of any Loan Documents, the consent to any departure by the Borrower therefrom, or to the exercising or refraining from exercising any powers or rights such Lender may have under or in respect of the Loan Documents (including the right to enforce the obligations of the Borrower), except if any such amendment, waiver or other modification or consent would reduce the amount, or postpone any date fixed for, any amount (whether of principal, interest or fees) payable to such participant under the Loan Documents, to which such participant would otherwise be entitled under such participation or. In the event of the sale of any participation by any Lender, (w) such Lender's obligations under the Loan Documents shall remain unchanged, (x) such Lender shall remain solely responsible to the other parties for the performance of such obligations, (y) such Lender shall remain the holder of such Obligations for all purposes of this Section 8.07(a)Agreement and (z) the Borrower, the terms “Approved Fund” Administrative Agent and “Ineligible Institution” 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. Each participant shall be entitled to the benefits of Sections 2.11, 2.12 and 2.10(d) as if it were a Lender; provided, however, that anything herein to the contrary notwithstanding, the Borrower shall not, at any time, be obligated to make under Sections 2.11, 2.12 or Section 2.10(d) to the participants in the rights and obligations of any Lender (together with such Lender) any payment in excess of the amount the Borrower would have the following meanings:been obligated to pay to such Lender in respect of such interest had such participation not been sold.
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Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances Loans owing to it and its participation in Facility LCsthe Note or Notes held by it); provided that provided, however, that: (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount amount of the Commitments and/or Loans of the assigning Lender being assigned pursuant to each such assignment other than an assignment to another Lender (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof, (iii) each such assignment shall be to an Eligible Assignee, and (unless such assignment shall be to a Lender, an Affiliate of such Lender, a Subsidiary of the assigning Lender, or to the bank holding company or a Subsidiary of the bank holding company of which the assigning Lender is a Subsidiary) the U.S. Borrower and the Administrative Agent shall have consented to such assignment (which consents shall not be unreasonably withheld or delayed); provided, that no consent of the U.S. Borrower shall be required if an Event of Default under Section 7.01(a) or (e) has occurred and is continuing; provided, further, that the consent of the U.S. Borrower shall be deemed to have been provided unless the U.S. Borrower has notified the Administrative Agent of its refusal to give such consent within 10 Business Days of receiving written request for its consent to such assignment, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 paid by either the assigning Lender or the
(which b) 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 the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of
(c) [Intentionally Deleted].
(d) The Administrative Agent shall maintain at its address referred to in Section 9.02 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 Commitments of, and principal and interest amounts of the Loans owing to, each Lender from time to time (the “Register”). The entries in the Register shall be payable conclusive and binding for all purposes, absent manifest error, and each Borrower, the Administrative 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 one the U.S. Borrower or more any Lender at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall provide the U.S. Borrower with a copy of the parties Register upon reasonable request.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C-1 hereto, (1) accept such Assignment and Acceptance, (2) record the information contained therein in the Register and (3) give prompt notice thereof to the Assignment U.S. Borrower. Within five Business Days after its receipt of such notice, the relevant Borrower, at its own expense, shall execute and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice deliver to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after in exchange for the effective date specified in each Assignment and Assumption, (x) the assignee thereunder shall be surrendered Note or Notes a party hereto and, new Note to the extent that rights and obligations hereunder have been assigned to it pursuant to order of such Assignment and Assumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, Eligible Assignee in an amount equal to the extent that rights and obligations hereunder have been assigned Commitments and/or Loans assumed by it pursuant to such Assignment and AssumptionAcceptance and a new Note to the order of the assigning Lender in an amount equal to the Commitments and/or Loans retained by it hereunder. Such new Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, relinquish its rights and shall be released from its obligations under this Agreement and, in dated the case effective date of an such Assignment and Assumption covering all Acceptance and shall otherwise be in substantially the form of Exhibit A-l hereto. Such surrendered Note or Notes shall be marked “canceled” and shall be returned promptly to the remaining U.S. Borrower.
(f) Each Lender may sell participations to one or more banks or other entities (other than (x) any natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person), (y) any Borrower or any Affiliates of such Borrower or (z) any Defaulting Lender) in or to a portion of an assigning Lender’s its rights and obligations under this Agreement (including, without limitation, a portion of its Commitments, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) such Lender’s
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information, including Confidential
(h) Notwithstanding any other provision in this Agreement, such Lender an Eligible Assignee shall cease to be a party hereto (although an assigning Lender shall continue to not be entitled to indemnification pursuant receive any greater payment under Section 2.12 or 3.05 than the assigning Lender would have been entitled to Section 8.04(c)). receive, except to the extent such entitlement to receive a greater payment results from a change in law that occurs after the effective date of such assignment.
(i) Notwithstanding anything contained any other provision set forth in this Section 8.07(a) to the contraryAgreement, (A) the consent of the Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, time and without the consent of the Borrower, Administrative Agent or any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign Borrower create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Loans owing to a it and the Notes held by it), including in favor of any Federal Reserve Bank, provided that no such assignment shall release Bank in accordance with Regulation A of the transferor Lender from Board of Governors of the Federal Reserve System or any of its obligations hereunderother central banking authority. For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:SECTION 9.08 [Intentionally Deleted].
Appears in 1 contract
Sources: Term Loan Agreement (FMC Corp)
Assignments and Participations. (a) Each Lender may, with No Borrower may assign any of its rights or obligations hereunder or under the Notes or any other Loan Document without the prior written consent of all of the Borrower, each LC Issuer Banks and the Administrative Agent Agent.
(which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gb) shall to the extent required by such Section, Each Bank may assign to one or more banks or other entities assignees (other than a natural person or any entity maintained solely for the benefit of an Ineligible Institutionindividual natural person and the immediate family members thereof) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and Credit Exposure at the Advances time owing to it it) (but only with the consent of the Borrower and its participation in Facility LCsthe Administrative Agent, each of which consents will not be unreasonably withheld or delayed); provided that that: (i) no such consent by the Borrower shall be required if the assignee is a Bank, an Affiliate of a Bank or an Approved Fund or if an Event of Default has occurred and is continuing; (ii) except to the extent the Borrower (unless an Event of Default has occurred and is continuing) and the Administrative Agent shall otherwise consent, any such partial assignment (other than to a Bank or an Affiliate of a Bank) shall be in an amount at least equal to $10,000,000; (iii) each such partial assignment shall be made as an assignment of a constant, and not a varying, percentage proportionate part of all of the assigning LenderBank’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment ; and Assumption with respect to such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment assignee and assignor shall execute and deliver to the Administrative Agent, Agent for its acceptance an Assignment and recording Assumption for each such assignment. The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Banks, and the Commitment of, and principal amount (and stated interest) of the Loans owing to, each Bank pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive in the absence of manifest error, and the Borrower, the Administrative Agent and the Banks may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Bank hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Bank (with respect to its own interest only), at any reasonable time and from time to time upon reasonable prior notice. - 52 - Credit Agreement [[3570658]] Upon execution and delivery by the assignor and the assignee to the Administrative Agent of such Assignment and Assumption and upon the Administrative Agent’s receipt of the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Bank hereunder) and the processing and recordation fee referred to below in this paragraph, and upon consent thereto by the Borrower and the Administrative Agent to the extent required above, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if whereupon the assignee is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (x) the assignee thereunder shall be a party hereto andhave, to the extent that of such assignment (unless otherwise consented to by the Borrower and the Administrative Agent), the obligations, rights and obligations benefits of a Bank hereunder have been holding the Commitment and Credit Exposure (or portions thereof) assigned to it pursuant to and specified in such Assignment and AssumptionAssumption (in addition to the Commitment and Credit Exposure, have if any, theretofore held by such assignee) and the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Assumptionassignment, relinquish its rights and be released from its obligations under this Agreement the Commitment (or portion thereof) so assigned (and, in the case of an Assignment and Assumption covering all or of the remaining portion of an assigning LenderBank’s rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto (although an assigning Lender but shall continue to be entitled to indemnification the benefits of Sections 5.01 and 5.05 with respect to facts and circumstances occurring prior to the effective date of such Assignment and Assumption); provided that if either the assigning Bank or the assignee shall have failed to make any payment required to be made by it pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary4.06 or 10.05 hereof, (A) the consent of the Borrower and the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. Upon each such assignment, the assignor or assignee shall pay the Administrative Agent an assignment fee of $3,500. Any assignment or transfer by a Bank of rights or obligations under this Agreement that does not comply with this Section 11.06(b) shall be required void and any such purported assignment or transfer shall be treated for purposes of this Agreement as a sale by such Bank of a participation in such rights and obligations in accordance with paragraph (c) of this Section. Notwithstanding anything to the contrary contained herein, any Bank (a “Granting Bank”) may grant to a special purpose funding vehicle (a “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Bank shall be obligated to make such Loan pursuant to the terms hereof, and (iii) the rights of any such SPC shall be derivative of the rights of the Granting Bank, and such SPC shall be subject to all of the restrictions upon and requirements imposed upon the Granting Bank herein contained. Each SPC shall be conclusively presumed to have made arrangements with its Granting Bank for the exercise of voting and other rights hereunder in a manner which is acceptable to the SPC, the Administrative Agent, the Banks and the Borrower, and each of the Administrative Agent, the Banks and the Borrower shall be entitled to rely upon and deal solely with the Granting Bank with respect to Loans made by or through its SPC. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Loan were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any assignment by indemnity or similar payment obligation under this
(c) A Bank may sell or agree to sell to one or more other Persons (each a “Participant”) a participation in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and Credit Exposure at the time owing to it), without notice to or consent of the Borrower, the Administrative Agent or any Lender to an Affiliate other Bank; provided that such Participant shall not have any rights or obligations under this Agreement or any Note (the Participant’s rights against such Bank in respect of such Lender or participation to another Lender or be those set forth in the agreements executed by such Bank in favor of the Participant), except as provided below. All amounts payable by the Borrower to an Approved Fundany Bank under Section 5 hereof in respect of Credit Exposure held by it, and (B) its Commitment, shall be determined as if such Bank had not sold or agreed to sell any Lender participations in such Credit Exposure and Commitment, and as if such Bank were funding each of such Credit Exposure and Commitment in the same way that it is funding the portion of Credit Exposure and Commitment in which no participations have been sold. In no event shall a Bank that sells a participation agree with the Participant to take or refrain from taking any action hereunder except that such Bank may at any timeagree with the Participant that it will not, without the consent of the Participant, agree to (i) increase or extend the term of such Bank’s Commitment, or extend the time or waive any requirement for the reduction or termination, of such Bank’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the related Loan or Loans or any portion of any fee hereunder payable to the Participant, (iii) reduce the amount of any such payment of
(d) In addition to the assignments and participations permitted under the foregoing provisions of this Section 11.06, any Bank may (without notice to or consent of the Borrower, any LC Issuer or the Administrative Agent, Agent or any other Bank and without payment of any requirement to have an Assignment fee)
(i) assign and Assumption executed, assign pledge all or any part portion of its rights under this Agreement to a secure obligations of such Bank, including, without limitation, to assign or pledge to secure obligations to any Federal Reserve Bank, provided that no Bank or any central bank having jurisdiction over such Bank and (ii) assign all or any portion of its rights under this Agreement and its Loans and its Notes to an Affiliate. No such assignment shall release the transferor Lender assigning Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the Borrower or any of its obligations hereunder. For Subsidiaries in the purposes possession of this Section 8.07(asuch Bank from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the terms “Approved Fund” and “Ineligible Institution” have the following meanings:provisions of Section 11.12 hereof.
Appears in 1 contract
Assignments and Participations. (a) Each Lender maymay and, with if demanded by PPG will (following (x) a demand by such Lender pursuant to Section 2.10 or 2.13 or (y) a failure by such Lender to sign, within three Business Days after the date originally scheduled for delivery of such 38 signature if the Required Lenders have delivered such signature on or prior written to such scheduled date, any proposed amendment, waiver or consent to this Agreement or the Notes requiring, pursuant to Section 9.01, the signature of the Borrowerall Lenders), each LC Issuer upon at least five Business Days’ notice to such Lender and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such SectionAgent, assign to one or more banks or other entities (other than an Ineligible Institution) Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was an Affiliate of a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or10,000,000 unless otherwise agreed by the Administrative Agent and, if lessso long as no Default has occurred and is continuing, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentPPG, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by PPG pursuant to this Section 9.07(a) shall (x) be an assignment of all of such Lender’s rights and obligations under this Agreement (including, without limitation, all of such Lender’s Commitment, the Advances owing to it and the Note or Notes held by it) and (y) be arranged by PPG after receipt of the written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed, and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by PPG pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AssumptionAcceptance, together with any Note subject to such assignment, (unless the assignee is already a Lender hereunder) an Administrative Questionnaire for the assignee and a processing and recordation fee of $3,500 (which payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by PPG, such recordation fee shall be payable by one or more of the parties to the Assignment and Assumption, and not by the Borrower (PPG except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), and shall not be payable if an assignment made at the assignee request of PPG to an Eligible Assignee that is a Federal Reserve Bank), (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Defaultan existing Lender, and (vivii) any Lender may, without the Borrower shall be deemed to have consented approval of PPG, assign all or a portion of its rights to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereofof its Affiliates. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AssumptionAcceptance, (x) 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 AssumptionAcceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AssumptionAcceptance, relinquish its rights (other than its rights under Section 2.10, 2.13 and 9.04 to the extent any claim thereunder relates to an event arising prior such assignment) and be released from its obligations under this Agreement (other than its obligations under Section 8.05 to the extent any claim thereunder relates to an event arising prior to such assignment) (and, in the case of an Assignment and Assumption 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).
(b) 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: (although an i) other than as provided in such Assignment and Acceptance, such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower makes no representation or warranty and the Administrative Agent shall not be required assumes no responsibility with respect to any assignment statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Lender to an Affiliate Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of 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 Administrative 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 another 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative 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 that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C 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.
(d) The Administrative Agent, acting solely for this purpose as an agent of PPG, shall maintain at its address referred to in Section 9.02 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 Commitment of, and principal amount (and stated interest on) of the Advances 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 Administrative 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) Each Lender may sell participations to one or more banks or other entities (other than PPG or any of its Affiliates) in or to an Approved Fundall or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and any Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) and the other Loan Documents 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 and the other Loan Documents, (iv) the Borrowers, the Administrative 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 and the other Loan Documents and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any of the other Loan Documents, or any consent to any departure by any Borrower 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 or thereunder, in each case to the extent subject to such participation, or 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. Each Lender that sells a participation shall, acting solely for this purpose as a nonfiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (Bin its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to PPG furnished to such Lender by or on behalf of PPG; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information relating to PPG received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Assumption executed, assign time create a security interest in all or any part portion of its rights under this Agreement (including, without limitation, the Advances owing to a it and any Note or Notes held by it) in favor of any Federal Reserve Bank, Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or to any other central bank; provided that no such assignment shall release the transferor a Lender from any of its obligations hereunderhereunder or substitute any such assignee for such Lender as a party hereto.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), upon the identification as such in writing from time to time by such Granting Lender to the Administrative Agent and PPG and upon the prior written consent of PPG in its sole and absolute discretion, the option to provide to any Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Advance and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. For The making of an Advance by an SPC hereunder shall utilize the purposes Commitment of the Granting Lender to the same extent and as if such Advance were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with such Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07(a)9.07, any SPC may (i) with notice to, but without the terms “Approved Fund” prior written consent of, PPG and “Ineligible Institution” have the following meanings:Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to the Granting Lender or to any financial institutions (consented to by PPG and the Administrative Agent) providing liquidity and/or credit support to or for the 41 account of such SPC to support the funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.07(h) may not be amended without the written consent of the SPC.
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