Assignments and Participations. (a) Each Lender may 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 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 Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment; (ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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. (b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto). (c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.
Appears in 4 contracts
Sources: Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/)
Assignments and Participations. (a) Each Lender LC Participant may 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 Revolving Loans, the Swing Loans LC Disbursements and the Letters of Credit); provided, however, that:
that (i) if any such assignment shall be of the assigning LenderLC Participant’s Revolving Credit LC Obligation Outstandings and Revolving Credit CommitmentLC Commitments, such assignment shall cover the same percentage of such LenderLC Participant’s Revolving Credit LC Obligation Outstandings and Revolving Credit Commitment;
LC Commitments, (ii) the aggregate amount 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 (if less than the Assignorassignor’s entire interest) be less than $5,000,000 1,000,000 or an integral multiple of $1,000,000 100,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower Company and the Administrative Agent or (IIB) if such assignment is being made to a Lender an LC Participant or an Affiliate or Approved Fund of such Lender; and
LC Participant and (iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender an LC Participant or an Affiliate or Approved Fund of a Lenderan LC Participant, such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer Agent and the Borrower Company (which consents shall not be unreasonably withheld or delayed); provided, however, that 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 5 Business Days of having received notice thereof; and provided, further, that, notwithstanding any other provision of this Section 11.2, the consent of the Borrower Company shall not be required for any assignment occurring when any Event of Default specified in Section 9.1(a), (b), or (f) (Events of Default) shall have occurred and be continuing.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance. Upon such the execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreementand, shall be effective unless it is entered other than in the Register in due course.respect of assignments made pursuant to Section 2.17 (Substitution of LC Participants) and Section 11.1(c) (
Appears in 3 contracts
Sources: Amendment No. 7 (Tenet Healthcare Corp), Letter of Credit Facility Agreement (Tenet Healthcare Corp), Letter of Credit Facility Agreement (Tenet Healthcare Corp)
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 and their respective successors and permitted assigns; provided, 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 Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (c) below, each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees (x) Lenders, (y) Affiliates or Related Funds of any Lender or (z) commercial banks, insurance companies, or finance companies, financial institutions, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act) (other than, so long as no Event of Default under Section 9.01(a)(ii), Section 9.01(f) or Section 9.01(g) has occurred and is continuing, a Competitor, a Disqualified Institution or a natural person) all or a portion of its rights and obligations hereunder (including all of its rights and obligations under this Agreement with respect to (A) all or a portion of its Term Loan Commitment and any Term Loan made by it and (B) all or a portion of its Revolving Credit Commitment and the Revolving LoansLoans made by it with the written consent of (i) the Collateral Agent (such consent of the Collateral Agent not to be unreasonably withheld), the Swing Loans LC Issuer (such consent of the LC Issuer not to be unreasonably withheld) and the Letters Revolving Agent (such consent of Creditthe Revolving Agent not to be unreasonably withheld) (with respect to Revolving Loans) and (ii) so long as no Event of Default under Section 9.01(a)(ii), Section 9.01(f) or Section 9.01(g) has occurred and is continuing, the Administrative Borrower (such consent of the Administrative Borrower not to be unreasonably withheld, delayed or conditioned); provided that the Administrative Borrower will be deemed to have consented if the Administrative Borrower has not responded within 10 Business Days of written request; provided, howeverfurther, thatthat no written consent of the Collateral Agent or the Administrative Borrower shall be required in connection with any assignment by a Lender to an Agent or a Lender, an Affiliate of an Agent or a Lender or a Related Fund of an Agent or a Lender.
(c) Assignments shall be subject to the following additional conditions:
(i) if any Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage remainder of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
) (iiexcept such minimum amount shall not apply to an assignment by a Lender to (A) an Agent or a Lender, an Affiliate of an Agent or a Lender or a Related Fund of an Agent or a Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount being to be assigned pursuant to each all such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than new Lenders is at least $5,000,000 or an integral a multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender); and
(iiiii) if such Eligible Assignee is not, prior to Except as provided in the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision last sentence of this Section 11.212.07(c)(ii), the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent (and the Collateral Agent and the Revolving Agent, if applicable), for its acceptance and recording in the Register (as defined in clause (c) below)acceptance, an Assignment and Acceptance. Upon , together with any new promissory note requested (it being understood that the assigning Lender shall, upon the effectiveness of such executionassignment, delivery, acceptance and recording in the Register and the receipt surrender any existing promissory note held by it to the Administrative Agent from for cancellation) to such assignment and such parties shall deliver to the assignee of Administrative Agent an assignment IRS Form W-9 and all documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act, along with, a processing and recordation fee in the amount of $3,500 5,000 (other than except the payment of such fee shall not be required in the case of connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) for the benefit of the Administrative Agent. Notwithstanding anything to the contrary contained in this Section 12.07(c)(ii), a Lender may, upon written notice to the Administrative Agent, 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 Agents or to any other Person (a “Related Party Assignment”); provided, however, that (A) the Borrowers and the Administrative Agent may continue to deal solely and directly with such assigning Lender until an Assignment and Acceptance has been delivered to the Administrative Agent for recordation on the Register, (B) the Collateral Agent may continue to deal solely and directly with such assigning Lender until receipt by any the Collateral Agent of a copy of the fully executed Assignment and Acceptance pursuant to Section 12.07(g), (C) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Agents shall not affect the legality, validity, or their respective Affiliatesbinding effect of such assignment, and (D) from an Assignment and after Acceptance between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date specified in such Assignment and AcceptanceAcceptance and recordation on the Related Party Register referred to in the last sentence of Section 12.07(f) below; and
(iii) No such assignment shall be made to (A) any Loan Party 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 foregoing Persons described in this clause (B).
(d) Upon such execution, delivery and acceptance, from and after the date recorded in the Register, which effective date shall be at least 3 Business Days after the delivery thereof to the Administrative Agent (or such shorter period as shall be agreed to by the Administrative Agent and the parties to such assignment), (iA) the assignee thereunder shall become a party hereto “Lender” hereunder and, in addition to the extent that rights and obligations under the Loan Documents have been assigned hereunder held by it immediately prior to such assignee pursuant to such Assignment and Acceptanceeffective date, have the rights and obligations of a Lender, hereunder that have been assigned to it pursuant to such Assignment and if such Lender were an Issuer, of such Issuer hereunder and thereunder, Acceptance and (iiB) the assignor assigning Lender thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender▇▇▇▇▇▇’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto).
(ce) 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) unless an Event of Default under Section 9.01(a)(ii), Section 9.01(f) or Section 9.01(g) has occurred and is continuing, the assignee represents and warrants that it is not a Competitor, a Disqualified Institution or any Affiliate of any Disqualified Institution, and that it is legally authorized to enter into such Assignment and Acceptance; (iv) 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; (v) 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; (vi) 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 (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.
(f) The Administrative Agent shall maintain shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at one of its address referred to in Section 11.8 offices, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recording recordation of the names and addresses of the Lenders and the IssuersCommitments of, and the Revolving Credit Commitments of and principal amount of the Revolving Loans (and stated interest thereon) (the “Registered Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations”) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”)time. The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrowers, the Administrative Agent, Agents and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility 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. In the Facility Agents case of an assignment pursuant to the last sentence of Section 12.07(c)(ii) as to which an Assignment and Acceptance is not delivered to the Administrative Agent, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained, a register (the “Related Party Register”) comparable to the Register on behalf of the Borrowers. The Related Party Register shall be available for inspection by the Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice. This Section 12.07(f) shall be construed so that the Loans are at all times maintained in “registered form” within the meanings of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (and any successor provisions).
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, 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 Administrative Agent) and provide to the Collateral Agent and the Revolving Agent, if applicable, a copy of the fully executed Assignment and Acceptance.
(h) Subject to this Section 12.07, 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 or the Related Party 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 or the Related Party 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 accordance with Section 12.07(k) below, 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. No Revolving 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, Swing Loanor other Obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. This Section shall be construed so that the Loans are at all times maintained in “registered form” within the meanings of Sections 163(f), Letter 871(h)(2) and 881(c)(2) of Credit Obligationthe Internal Revenue Code and any related regulations (and any successor provisions).
(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 (other than (x), Reimbursement Obligationso long as no Event of Default under Section 9.01(a)(ii), nor Section 9.01(f) or Section 9.01(g) has occurred and is continuing, a Competitor, (y) a Disqualified Institution or (z) a natural person) 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 entitled to require such Lender to take or omit to take any Assignment and Acceptance action hereunder except (A) action directly effecting an extension of the scheduled maturity dates or Assumption 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, shall be effective unless it is entered in the Register in due course.or (C) actions directly effecting a release of all or substanti
Appears in 2 contracts
Sources: Financing Agreement (Regis Corp), Financing Agreement (Regis Corp)
Assignments and Participations. (a) Each Any Lender may sellmay, transferwith the prior written consent of the Borrower Representative unless an Event of Default has occurred and is continuing, negotiate which consent shall not be unreasonably withheld, conditioned or assign delayed, sell with novation all or any part of its right, title and interest in, and to, and under the Commitment, the Advances Outstanding and this Agreement, on either a pro rata or senior/subordinate basis or otherwise, in the sole discretion of such Lender (an “Assignment”), 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 Revolving Loansadditional Persons, the Swing Loans and the Letters of Credit); provided, however, that:
provided that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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 Representative will not be required for any Assignment to another Lender, or any Affiliate of any Lender and (ii) other than an assignment occurring when any Event of Default all Commitments and Advances Outstanding of the assigning ▇▇▇▇▇▇, then Commitments and Advances Outstanding may not be assigned in amounts less than $5,000,000 and $1,000,000 increments over such amount. Each new Lender shall have occurred enter into an assignment and be continuing.
assumption agreement (b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an “Assignment and AcceptanceAssumption”) assigning the assigning ▇▇▇▇▇▇’s (the “Assigning Lender”) rights and obligations, and pursuant to which the Lender accepts such assignment and assumes the assigned obligations. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from From and after the effective date specified in such the Assignment and Acceptance, Assumption (i) the assignee thereunder new Lender shall become be a party hereto and, and to each Loan Document to the extent that rights and obligations under of the Loan Documents have been assigned to such assignee pursuant to such applicable percentage or percentages set forth in the Assignment and AcceptanceAssumption and, have except as specified otherwise herein, shall succeed to the rights and obligations (in whole or in part) of a Lender, and if such the Assigning Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder Assigning Lender shall, to the extent that such rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations hereunder and under the Loan Documents. In no event shall any of the following competitors of the Sponsor be assigned or participate in, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining any portion of the Facility, unless an assigning Lender’s rights Event of Default has occurred and obligations is continuing in respect of a failure of any Borrower to pay principal or interest due under the Loan Documentsfacility which has continued for thirty (30) days: (1) UBS, such Lender shall cease to be a party hereto(2) Apollo (or Athene), (3) Credit Suisse, (4) Amherst, (5) Pretium or (6) Ares.
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Vinebrook Homes Trust, Inc.), Revolving Credit Agreement (Vinebrook Homes Trust, Inc.)
Assignments and Participations. (a) Each Lender The 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, except that (i) the Borrower may sell, transfer, negotiate not assign or assign to one or more Eligible Assignees all or a portion otherwise transfer any of its rights and or obligations hereunder without the prior written consent of each Lender, and (including all ii) a Lender may not assign or otherwise transfer any of its rights and or obligations with respect hereunder to anyone other than an Eligible Assignee; provided, that a Lender shall provide notice of such assignment to the Borrower, the Servicer, the Backup Servicer and the Deal Agent. Except in the case of an assignment to another then existing Lender, an Affiliate of a Lender, an Approved Fund or an assignment of the entire remaining amount of the assigning ▇▇▇▇▇▇’s Commitment and/or Revolving Loans, the Swing amount of the Commitment or Revolving Loans and the Letters of Credit); provided, however, that:
(i) if subject to any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount 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 (if less than the Assignor’s entire interest) not be less than $5,000,000 10,000,000, unless the Deal Agent, and, so long as no Termination Event has occurred and is continuing or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 notany Federal Reserve Bank, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer and the Borrower otherwise consents (which consents shall each such consent not to be unreasonably withheld or delayed); . Each partial assignment shall be made as an assignment of a proportionate part of all the assigning ▇▇▇▇▇▇’s rights and provided, further, that, notwithstanding any other provision of obligations under this Section 11.2, Agreement with respect to the consent of Revolving Loans or the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) Commitment assigned. The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Deal Agent an Assignment and Acceptance. Upon such execution, delivery, acceptance Assumption (together with a processing and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment recordation fee in the amount of $3,500 (other than 3,500; provided, that the Deal Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment) and shall provide a copy thereof to the Collateral Agent, the Servicer, the Backup Servicer and the Borrower. The assignee, if it is not a Lender, shall deliver to the Deal Agent an assignment by a Lender Administrative Questionnaire. Nothing in this Agreement, expressed or implied, shall be construed to an Affiliate of such Lender or by confer upon any Agent or Person (other than the parties hereto, their respective Affiliates) from successors and after the effective date specified in such Assignment and Acceptanceassigns permitted hereby, (i) the assignee thereunder shall become a party hereto and, or any participants to the extent that rights and obligations provided in Section 12.1(b) hereof) any legal or equitable right, remedy or claim under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, or by reason of this Agreement.
(b) Any Lender shall have the rights and obligations of right to grant participations in all or a Lender, and if such Lender were an Issuer, portion of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that Lender’s rights and and/or obligations under this Agreement have been assigned by it pursuant (including all or a portion of its Commitment and/or the Revolving Loans owing to it) to one or more other banking institutions (each such Assignment person a “Participant”), and Acceptancesuch Participants shall be entitled to the benefits of this Agreement, relinquish its rights including, without limitation, Sections 2.10 and 2.11 hereof, to the same extent as if they were a direct party hereto; provided that (except those which survive the payment in full of the Obligationsi) and be released from its such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the Loan Documents, other than those relating parties hereto for the performance of such obligations and (iii) the Borrower and the other parties hereto shall continue to events or circumstances occurring prior to deal solely and directly with such assignment (and, Lender in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning connection with such Lender’s rights and obligations under this Agreement, and provided further that no such Participant shall be entitled to receive payment hereunder of any amount greater than the Loan Documentsamount which would have been payable had such Lender not granted a participation to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. Upon the grant of a participation of any Lender’s rights and/or obligations under this Agreement, such Lender will promptly notify the Borrower of the Participant and the proportionate amount granted under such participation. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall cease have any obligation to be disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a party hereto)Participant’s interest in any commitments, loans or its other obligations under any Transaction 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.
(c) The Administrative Agent Deal Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its address referred to offices in Section 11.8 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Lenders, and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount amounts (and stated interest) of the Revolving LoansLoans owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer pursuant to the terms hereof from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Deal Agent and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register pursuant to the terms hereof as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents any Lender, at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan.
(d) Nothing herein shall prohibit any Lender from pledging or assigning as collateral any of its rights under this Agreement to secure obligations of such Lender, Swing Loan, Letter including any pledge or assignment to secure obligations to any Federal Reserve Bank in accordance with Applicable Law and any such pledge or collateral assignment may be made without compliance with Section 12.1(a) or Section 12.1(b); provided that no such pledge shall release such Lender from any of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance its obligations hereunder or Assumption Agreement, shall be effective unless it is entered in the Register in due coursesubstitute such pledgee or assignee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Assignments and Participations. (a) Each Lender may 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:
that (i) if any such assignment shall be of the assigning Lender’s 's Revolving Credit Outstandings and Revolving Credit CommitmentCommitments under any Revolving Credit Facility, such assignment shall cover the same percentage of such Lender’s 's Revolving Credit Outstandings and Revolving Credit Commitment;
Commitment under such Revolving Credit Facility, (ii) the aggregate amount 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 (if less than the Assignor’s 's entire interest) be be, (x) in the case of any Revolving Credit Facility, less than $5,000,000 2,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the case of the Term Facility, less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower Company and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
, (iii) (A) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender or (B) in the case of any Canadian Dollar Loan, if the Canadian Lending Office of such Eligible Assignee is not located in Canada, such assignment shall be subject to the prior consent of the Administrative Agent and the Company (which consents shall not be unreasonably withheld or delayed) and (iv) in the case of any Multi-Currency Commitment, 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 the prior consent of the Administrative Agent, each Issuer and the Borrower UBS (which consents 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 Company shall not be required (x) for any assignment occurring when any Default or Event of Default shall have occurred and be continuingcontinuing and (y) for any assignment by any Agent or any Affiliate of such Agent (in its capacity as a Lender) made within 30 Business Days after the Closing Date of its Commitments held on the Closing Date. Any such assignment need not be ratable as among any of the Facilities.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Note (if the assigning Lender's Loans are evidenced by a Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register of any Assignment and Acceptance and, except for any primary assignment by any Agent or any Affiliate of such Agent (in its capacity as a Lender), the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notation in the Register and (iii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those which survive surviving the 119 payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 (Notices, Etc.) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for shall record in the recording of Register the names and addresses of the Lenders and Issuers and the Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Reimbursement Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time and the Commitments of each Lender. Any assignment pursuant to this Section 11.2 shall not be effective until such assignment is recorded in the Register.
(d) 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, (i) accept such Assignment and Acceptance, (ii) record or cause to be recorded 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, the Borrowers, at their own expense, shall, if requested by such assignee, execute and deliver to the Administrative Agent new Notes to the order of such assignee in an amount equal to the Commitments and Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Note for exchange in connection with the assignment and has retained Commitments or Loans hereunder, new Notes to the order of the assigning Lender in an amount equal to the Commitments and Loans retained by it hereunder. Such new Notes shall be dated the same date as the surrendered Notes and be in substantially the form of Exhibit B-1 (Form of Revolving Credit Facility Register” Note) or Exhibit B-2 (Form of Term Note), as applicable.
(e) In addition to the other assignment rights provided in this Section 11.2, each Lender may do each of the following:
(i) grant to a Special Purpose Vehicle the option to make all or any part of any 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 Loans pursuant thereto shall satisfy (once and to the extent that such Loans are made) the obligation of such Lender to make such Loans thereunder; provided, however, that (x) nothing herein shall constitute a commitment or an offer to commit by such a Special Purpose Vehicle to make Loans hereunder and no such Special Purpose Vehicle shall be liable for any indemnity or other Obligation (other than the making of Loans for which such Special Purpose Vehicle shall have exercised an option, and then only in accordance with the relevant option agreement) and (y) such Lender's obligations under the Loan Documents shall remain unchanged, such Lender shall remain responsible to the other parties for the performance of its obligations under the terms of this Agreement and shall remain the holder of the Obligations for all purposes hereunder; 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 Loans), to (A) without notice to or consent of the Administrative Agent or the “Register”Borrowers, any Federal Reserve Bank (pursuant to Regulation A of the Federal Reserve Board) and (B) without consent of the Administrative Agent or the Borrowers, (1) any holder of, or trustee for the benefit of, the 120 holders of such Lender's Securities and (2) any Special Purpose Vehicle to which such Lender has granted an option pursuant to clause (i) above; provided, however, that no such assignment or grant shall release such Lender from any of its obligations hereunder except as expressly provided in clause (i) above and except, in the case of a subsequent foreclosure pursuant to an assignment as collateral, if such foreclosure is made in compliance with the other provisions of this Section 11.2 other than this clause (e) or clause (f) below. 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 (e) any bankruptcy, reorganization, insolvency or liquidation proceeding (such agreement shall survive the payment in full of the Obligations). The entries in terms of the Revolving Credit Facility Register designation of, or assignment to, such Special Purpose Vehicle shall not restrict such Lender's ability to, or grant such Special Purpose Vehicle the right to, consent to any amendment or waiver to this Agreement or any other Loan Document or to the departure by any Borrower from any provision of this Agreement or any other Loan Document without the consent of such Special Purpose Vehicle except, as long as the Administrative Agent and the Lenders, Issuers and other Secured Parties shall continue to, and shall be conclusive entitled to continue to, deal solely and binding for directly with such Lender in connection with such Lender's obligations under this Agreement, to the extent any such consent would reduce the principal amount of, or the rate of interest on, any Obligations, amend this clause (e) or postpone any scheduled date of payment of such principal or interest. Each Special Purpose Vehicle shall be entitled to the benefits of Sections 2.15 (Capital Adequacy) and 2.16 (Taxes) and of 2.14(d) (Illegality) as if it were such Lender; provided, however, that anything herein to the contrary notwithstanding, no Borrower shall, at any time, be obligated to make under Section 2.15 (Capital Adequacy), 2.16 (Taxes) or 2.14(d) (Illegality) to any such Special Purpose Vehicle and any such Lender any payment in excess of the amount such Borrower would have been obligated to pay to such Lender in respect of such interest if such Special Purpose Vehicle had not been assigned the rights of such Lender hereunder; and provided, further, that such Special Purpose Vehicle shall have no direct right to enforce any of the terms of this Agreement against the Borrowers, the Administrative Agent or the other Lenders.
(f) Each Lender may sell participations to one or more Persons in or to all purposesor a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Term Loans, absent manifest errorRevolving Loans and Letters of Credit). The terms of such participation shall not, and 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 any Loan Party 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 Loan Parties), except if any such amendment, waiver or other modification or consent would (i) 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 (ii) result in the release of all or substantially all of the Collateral other than in accordance with Section 10.8(b) (Concerning the Collateral and the Collateral Documents). 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 Agreement and (z) the Borrowers, the Administrative Agent and the other 121 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 2.15 (Capital Adequacy) and 2.16 (Taxes) and of 2.14(d) (Illegality) as if it were a Lender; provided, however, that anything herein to the contrary notwithstanding, the Borrowers shall not, at any time, be obligated to make under Section 2.15 (Capital Adequacy), 2.16 (Taxes) or 2.14(d) (Illegality) to the participants in the rights and obligations of any Lender (together with such Lender) any payment in excess of the amount the Borrowers would have been obligated to pay to such Lender in respect of such interest had such participation not been sold and provided, further, that such participant in the rights and obligations of such Lender shall have no direct right to enforce any of the terms of this Agreement against the Borrowers, the Administrative Agent or the other Lenders.
(g) Any Issuer may at any time assign its rights and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the Borrowers, the Administrative Agent, such Issuer and such Lender, subject to the Lenders and the Issuers shall treat each Person whose name is recorded provisions of Section 2.7(b) (Evidence of Debt) relating to notations of transfer in the Revolving Credit Facility Register as Register. If any Issuer ceases to be a Lender or as an Issuerhereunder by virtue of any assignment made pursuant to this Section 11.2, then, as of the effective date of such cessation, such Issuer's obligations to Issue Letters of Credit pursuant to Section 2.4 (Letters of Credit) shall terminate and such Issuer shall be an Issuer hereunder only with respect to outstanding Letters of Credit issued prior to such date.
(h) Notwithstanding anything to the contrary contained in this Agreement, in the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, each Swiss Swing Loan, Letter each Swing Lender and each Borrower hereby agrees that, unless an Event of Credit ObligationDefault shall have occurred and is continuing, Reimbursement Obligationno more than ten lenders, nor any Assignment and Acceptance whether by assignment, participation or Assumption Agreementotherwise, shall be effective unless it is entered in the Register in due courseexist for such Swing Loan.
Appears in 2 contracts
Sources: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.)
Assignments and Participations. (ai) Each except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender may sell, transfer, negotiate or assign to one an Approved Fund or more Eligible Assignees an assignment of all or of a portion of its Lender's rights and obligations hereunder (including all of its rights and obligations with respect to the Revolving Loansunder this Agreement, the Swing amount of the Commitment and 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 Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or 1,000,000 and shall be an integral multiple of $1,000,000 in excess thereof500,000. Notwithstanding the foregoing, except (I) with the consent within three days of the Borrower Closing Date assignments may be made in an amount not less than $100,000, and such assigned amounts may be further assigned (in whole but not in part) in the Administrative Agent or (II) if such assignment is being made future in amounts equal to a Lender or an Affiliate or Approved Fund of such Lender; andthe amount originally assigned;
(iiiii) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall shall
(A) execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, and except for assignments to an Affiliate of the Lender or an Approved Fund and except for assignments on the Closing Date or in connection with the initial syndication, a processing and recordation fee of $500 for each such assignment,
(B) deliver a copy of such Assignment and Acceptance to the Borrower at the time it delivers a copy to the Administrative Agent; and
(iii) unless the Borrower and the Administrative Agent shall have consented thereto, no such assignment shall be made
(A) while any undrawn Commitment is outstanding, except to a Person that shall have represented that it has a combined capital and surplus or assets of at least $50,000,000, and
(B) except to a Person, other than a commercial bank or other financial institution or fund, that shall have represented that such Person is not engaged in, and does not have an Affiliate that is engaged in, the business of providing PCS telecommunications services to the public; and
(iv) the parties to such assignment shall, to the extent applicable, arrange with the Borrower for the execution and delivery of a substitute Note or Notes replacing any Note or Notes subject to such assignment. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.,
Appears in 2 contracts
Sources: Loan Agreement (Omnipoint Corp \De\), Loan Agreement (Omnipoint Corp \De\)
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees (other than to any Disqualified Institution) 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:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignorassignor’s entire interest) be less than (x) in the case of Revolving Credit Outstandings and Revolving Credit Commitments, $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the case of Term Loans, $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
a Lender (other than any Disqualified Institution), (iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a LenderLender (other than any Disqualified Institution), such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer Agent and the Borrower (which consents shall not be unreasonably withheld or delayed)) and (iv) if such Eligible Assignee is not, prior to the date of such assignment, a Revolving Credit Lender or an Affiliate of a Revolving Credit Lender, any such assignment with respect to Revolving Credit Outstandings and Revolving Credit Commitments shall be subject to the prior consent of each Issuer and Swing Lender; and provided, however 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 5 Business Days after having received notice thereof; 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 under Section 9.1(a), (b) or (f) (Events of Default) shall have occurred and be continuingcontinuing and (v) no Revolving Credit Commitments or Revolving Loans may be assigned to any Affiliated Lender. Any such assignment need not be ratable as among the Term Loan Facility 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 (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register of any Assignment and Acceptance and, other than in respect of assignments made pursuant to Section 2.17(b) (Mitigation Obligations; Substitution of Lenders) and Section 11.1(c) (Amendments, Waivers, Etc.), the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than and, in the case of an assignment by a Lender to an Affiliate of such Affiliated Lender or by any Agent or their respective Affiliatesa Person that, after giving effect to such assignment, would become an Affiliated Lender, satisfaction of the requirements set forth in clause (j) below) from and after the effective date specified in such Assignment and Acceptance; provided, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notation in the Register and (iii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those which survive surviving the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.
Appears in 2 contracts
Sources: Credit Agreement (Amc Entertainment Inc), Credit Agreement (Amc Entertainment Holdings, Inc.)
Assignments and Participations. (a) Each Lender may selland, transferif demanded by the Borrower (following a demand by such Lender pursuant to Section 2.11 or 2.14 or a suspension of Eurodollar Rate Advances pursuant to Section 2.12 and only if no Event of Default has occurred and is continuing) upon at least five Business Days' notice to such Lender and the Agent, negotiate or will assign to one or more Eligible Assignees Persons all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCredit Commitment, its undrawn Letter of Credit Commitment, the Swing Loans Advances owing to it, its participations in Letters of Credit and the Letters of CreditNote or Notes held by it); provided, however, that:
that (i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a constant, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings all rights and Revolving Credit Commitment;
obligations under and in respect of one or more of the Facilities, (ii) except in the aggregate 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 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereofthereof and (y) the undrawn Letter of Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the applicable Assignment and Acceptance) shall in no event be less than $1,000,000, except (I) with the consent of unless, in each case, the Borrower and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
otherwise agree, (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, each such assignment shall be subject to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the prior consent Borrower pursuant to this Section 9.07(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the Administrative Agent, each Issuer rights and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the consent obligations of the Borrower 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 not be required for obligated to make any such assignment occurring when any Event of Default shall have occurred and be continuing.as a result of
(b) The parties to each assignment shall execute By executing and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), delivering an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register Lender assignor thereunder and the receipt by assignee thereunder confirm to and agree with each other and the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 other parties hereto as follows: (i) other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified 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, 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 any Loan Party 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) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to accept such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) record the assignor thereunder shall, information contained therein in the Register and (iii) give prompt notice thereof to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto)Borrower.
(cd) The Administrative Agent shall maintain at its address referred to in Section 11.8 9.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan.
(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, Swing Loanwithout limitation, Letter all or a portion of Credit Obligationits Commitment, Reimbursement Obligationthe Advances owing to it and any Note or Notes held by it); provided, nor 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 Assignment and Acceptance or Assumption such Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders shall be effective unless 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.
(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 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 is entered from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Register Advances owing to it and any Note or Notes held by it) in due coursefavor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 2 contracts
Sources: Five Year Credit Agreement (Gatx Financial Corp), Five Year Credit Agreement (Gatx Corp)
Assignments and Participations. (a) This Agreement and the Revolving Credit Notes shall be binding upon and inure to the benefit of the Borrowers and the other the Loan Parties and the Agent and each Lender and their respective successors and assigns; provided, however, that each of the Borrowers and the other Loan Parties may not assign or transfer any of their rights hereunder, or under the Revolving Credit Notes, without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Each Lender may sellmay, transferwith the written consent of the Agent and, negotiate in the absence of a continuing Event of Default, the Administrative Borrower (such consent in the case of the Administrative Borrower is not required in the case of Affiliates of any Lender and is not to be unreasonably withheld or delayed), assign to one or more Eligible Assignees other lenders or other entities all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to Revolving Credit Commitment, the Revolving LoansLoans made by it, the Swing Loans Revolving Credit Notes held by it and the Letters its Pro Rata Share of CreditLetter of Credit Obligations); provided, however, that:
that (i) if any such assignment shall be except in the case of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitmentassignments to Affiliates of a Lender in which case there are no minimums, such assignment shall cover is in an amount which is at least $1,000,000 or a multiple of $100,000 in excess thereof (or the same percentage remainder of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
) (ii) the aggregate except such minimum amount 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties apply to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or a fund or account managed by such Lender or an Affiliate of such Lender) and (ii) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance, an Assignment and Acceptance, together with any Revolving Credit Note subject to such assignment and, except in the case of assignments to Affiliates of a Lender, such parties shall deliver to the Agent a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to an Affiliate of such Lender or their respective Affiliatesa fund or account managed by such Lender or an Affiliate of such Lender) and (iii) no written consent of the Agent shall be required in connection with any assignment by a Lender to an Affiliate of such Lender or a fund or account managed by such Lender or an Affiliate of such Lender. Upon such execution, delivery and acceptance, from and after the effective date specified in such each Assignment and Acceptance, which effective date shall be at least three Business Days after the delivery thereof to the Agent (ior such shorter period as shall be agreed to by the Agent and the parties to such assignment), (A) the assignee thereunder shall become a party hereto “Lender” hereunder and, in addition to the extent that rights and obligations under the Loan Documents have been assigned hereunder held by it immediately prior to such assignee pursuant to such Assignment and Acceptanceeffective date, have the rights and obligations of a Lender, hereunder that have been assigned to it pursuant to such Assignment and if such Lender were an Issuer, of such Issuer hereunder and thereunder, Acceptance and (iiB) the assignor assigning Lender thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto).
(ci) 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: (A) 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; (B) the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Loan Parties or any of their Subsidiaries or the performance or observance by the Loan Parties of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto; (C) 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; (D) such assignee will, independently and without reliance upon the Assigning Lender, the 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; (E) 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 thereof, together with such powers as are reasonably incidental thereto; and (F) 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.
(ii) The Administrative Agent shall maintain maintain, or cause to be maintained at its address referred to in Section 11.8 offices, a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of of, and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrowers, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Administrative Borrower and the Facility Agents any Lender at any reasonable time and from time to time upon reasonable prior notice. No .
(iii) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with the Revolving Credit Notes subject to such assignment, the Agent shall, if the Agent consents to such assignment and if such Assignment and Acceptance has been completed (i) accept such Assignment and Acceptance, (ii) give prompt notice thereof to Administrative Borrower, (iii) record the information contained therein in the Register, and (iv) prepare and distribute to each Lender and Administrative Borrower a revised Schedule 1.01(C) hereto after giving effect to such assignment, which revised Schedule 1.01(C) shall replace the prior Schedule 1.01(C) and become part of this Agreement.
(iv) Any foreign Person who purchases or is assigned or participates in any portion of a Revolving Loan shall provide the Agent (in the case of a purchase or assignment) or the Lender (in the case of a participation) with a completed Internal Revenue Service Form W-8 (Certificate of Foreign Status) or a substantially similar form for such purchaser, participant or any other affiliate who is a holder of beneficial interests in the Revolving Loan.
(c) 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, Swing Loanwithout limitation, all or a portion of its Revolving Credit Commitment, the Revolving Loans made by it and its Pro Rata Share of the Letter of Credit ObligationObligations); provided, Reimbursement Obligationthat (i) such Lender’s obligations under this Agreement (including without limitation, nor its Revolving Credit Commitment 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 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 (iii) a participant shall not be entitled to require such Lender to take or omit to take any Assignment and Acceptance action hereunder except (A) action directly effecting an extension of the maturity dates or Assumption decrease in the principal amount of the Revolving Loans or Letter of Credit Obligations, or (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Revolving 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 Borrower or any Guarantor (except as set forth in Section 10.08 of this Agreement or any Loan Document). The Loan Parties agree that each participant shall be effective unless entitled to the benefits of Section 2.08 and Section 4.05 of this Agreement with respect to its participation in any portion of the Revolving Credit Commitments and the Revolving Loans as if it is entered in the Register in due coursewere a Lender.
Appears in 2 contracts
Sources: Financing Agreement (Frederick's of Hollywood Group Inc /Ny/), Financing Agreement (Movie Star Inc /Ny/)
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees and delegate all or a any portion of its rights and obligations hereunder duties under the Loan Documents (including all of the Obligations owed to it and its rights and obligations Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with respect the prior written consent (such consent not to the Revolving Loans, the Swing Loans and the Letters of Credit)be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, howeverthat no consent of Administrative Borrower shall be required (1) if an Event of Default has occurred and is continuing, that:or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender or a Related Fund; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent within 10 Business Days after having received notice thereof; and
(iB) if any Agent, Swing Lenders, and Issuing Lenders; provided that no such assignment consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;a Lender (other than a natural person).
(ii) Assignments shall be subject to the aggregate 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 Affiliate of a Loan Party,
(C) the amount being assigned pursuant of the Commitments and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignmentassignment is delivered to Agent) shall be in no event a minimum amount (if less than the Assignor’s entire interestunless waived by Agent) be less than of $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (except such minimum amount shall not apply to (I) with the consent an assignment or delegation by any Lender to any other Lender, an Affiliate of the Borrower and the Administrative Agent any Lender, or a Related Fund of such Lender or (II) if such assignment a group of new Lenders, each of which is being made to a Lender or an Affiliate of each other or Approved a Related Fund of such Lender; andnew Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(iiiD) 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 each partial assignment shall be subject to made as an assignment of a proportionate part of all the prior consent of the Administrative Agent, each Issuer assigning ▇▇▇▇▇▇’s rights and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of obligations under 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.Agreement,
(bE) The the parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Agent an Assignment and Acceptance. Upon ; provided, that Borrower and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such executionassignment, deliverytogether with payment instructions, acceptance addresses, and recording in related information with respect to the Register Assignee, have been given to Administrative Borrower and Agent by such ▇▇▇▇▇▇ and the receipt Assignee,
(F) unless waived by Agent, the Administrative Agent from the assignee of an assignment assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing fee in the amount of $3,500 3,500,
(other than G) the Assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the case “Administrative Questionnaire”), and
(H) the Assignee shall have the ability to make Revolving Loans in accordance with the terms of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliatesthis Agreement,
(b) from From and after the effective date specified in such that Agent receives the executed Assignment and AcceptanceAcceptance and, if applicable, payment of the required processing fee, (i) the assignee Assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunderunder the Loan Documents, and (ii) the assignor thereunder assigning Lender shall, to the extent that rights and obligations hereunder and under this Agreement the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligationswith respect to Section 10.3) and be released from its any future obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party heretohereto and thereto); provided, 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 15 and Section 17.9(a).
(c) The Administrative Agent shall maintain at By executing and delivering an Assignment and Acceptance, the assigning Lender 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 Loan 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 address referred to in Section 11.8 obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of each this Agreement, together with 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 delivered 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 accepted authorizes Agent to take such actions 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 all of the obligations which by the terms of this Agreement are required to be performed by it and as a register for the recording Lender.
(d) Immediately upon Agent’s receipt of the names required processing fee, if applicable, and addresses delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Lenders Assignee and the Issuers, resulting adjustment of the Revolving Credit Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, its Commitment, and principal amount the other rights and interests of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each that Lender and each Issuer from time to time (the “Revolving Credit Facility RegisterOriginating Lender”) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a “Lender” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not 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) Borrower, 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 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 Collateral or guaranties (except to the extent expressly provided herein or in any 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 such Participant through such Lender (other than a waiver of default interest), or (E) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) all amounts payable by 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 Revolving Credit Facility Register 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, Agent, Borrower, the Collateral, 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.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of the Bank of Canada and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Agent (acting solely for this purpose as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Revolver Commitments (and the principal amount thereof and stated interest thereon) held by such ▇▇▇▇▇▇ (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolver Commitments to an Affiliate of such Lender or a Related Fund of such Lender (i) 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) and (ii) 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), Borrower 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. In the case of any assignment by a Lender of all or any portion of its Revolver Commitments to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, acting solely for this purpose as a non-fiduciary agent on behalf of Borrower, shall 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 such Registered Loans that is subject to such participations) (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. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register to the extent it has one) available for inspection review by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due courseas Borrower may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Birks Group Inc.), Credit Agreement (Birks Group Inc.)
Assignments and Participations. (a) Each Without the prior written consent of P&G and, except in connection with an Affiliate of any of the Borrowers exercising its call rights under Section 2.18, and of the Agent (which Agent’s consent shall not be unreasonably withheld), no Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a any portion of its rights and obligations hereunder under this Agreement to any Person, except to an Affiliate of such Lender, as provided in Section 2.11 or 2.14, or as set forth in Section 8.07(g) or to another Lender that is an Affiliate of such Lender. Each assignment pursuant to the terms of this Section 8.07(a) (including A) shall be of a constant, and not a varying, percentage of all of its rights and obligations under this Agreement and shall be on a pro rata basis between the Facilities (and, in the case of an assignment demanded by a Borrower, 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 respect to another such assignment or other such assignments that together cover all of the Revolving Loansrights and obligations of the assigning Lender under this Agreement), the Swing Loans and the Letters of Credit); provided, however, that:
(i) if except that any such assignment shall of a Commitment by a Lender to another Lender that is an Affiliate of such Lender need not be accompanied by an assignment of the same percentage of any of the assigning Lender’s Revolving Credit Outstandings Advances and Revolving Credit Commitment, any such assignment shall cover of one or more Advances by a Lender to another Lender that is an Affiliate of such Lender need not be accompanied by an assignment of the same percentage of such the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant to each such assignment (determined as Commitment or any of the date assigning Lenders other Advances, (B) except in the case of the Assignment and Acceptance with respect 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, shall in no event (if less than the Assignor’s entire interest) be less than $5,000,000 or 10,000,000, and (C) shall be evidenced by evidenced by an integral multiple of $1,000,000 in excess thereof, except (I) with the consent Assignment and Acceptance executed by each of the Borrower parties thereto and delivered to the Administrative Agent or (II) if Agent, for its acceptance and recordation in the Register. No Lender shall be obligated to make any such assignment is being made as a result of a demand by a Borrower pursuant to a this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Lender assignees therefrom in an Affiliate or Approved Fund aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender; and
(iii) if such Eligible Assignee is not, prior together with accrued interest thereon to the date of payment of such assignmentprincipal amount and all other amounts payable to such Lender under this Agreement, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to (D) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Notes subject to such assignment and (E) the Lenders party to each such Assignment and Acceptance shall remit to the Agent a processing and recordation fee of $3,500, which fee shall be payable by either the assigning Lender or the assignee Lender. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (i1) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii2) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis 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: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any of the other Loan Documents or the execution, legality, validity, enforceability, genuineness or sufficiency or value of this Agreement or any of 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 any Borrower or the performance or observance by any Borrower 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 delivered to Agent in accordance with this Agreement 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 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 (vi) 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 in accordance with Section 8.07(a), 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 each of the Borrowers.
(d) The Administrative Agent shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances under each Facility owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and each of the Loan PartiesBorrowers, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded as a Lender in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by each of the Borrower and the Facility Agents Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan.
(e) Each Lender may upon not less than five Business Days’ notice to P&G 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, Swing Loanwithout limitation, Letter all or a portion of Credit Obligationits Commitments which may be on a non-pro rata basis between the Facilities, Reimbursement Obligationthe Advances owing to it and any Note or Notes held by it); provided, nor however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to each of 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 shall remain the holder of any Assignment and Acceptance or Assumption such Note for all purposes of this Agreement, (iv) each of the Borrowers, the Agent and the other Lenders shall be effective unless 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 other Loan Document, or any consent to any departure by the Borrowers 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 scheduled date 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. If any Lender sells a participation as described in this Section 8.07(e), such Lender shall provide to the Agent on behalf of the Borrowers, or maintain as agent of the Borrowers, the information described in Section 8.07(d) with respect to such participation and shall permit each of the Borrowers to review such information (to the extent permitted under applicable law) from time to time upon request. Neither the sale of any such participation nor the holding of such a participation by any participant shall increase any obligation of any Borrower under Section 2.11 or Section 2.14.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or proposed participation, disclose to the assignee or participant or proposed assignee or participant any financial statements and related documents delivered to the Agent in accordance with Section 4.01(e) or Section 5.01(d)(i); provided that, prior to any such disclosure, the assignee or participant or proposed assignee or proposed participant shall agree to preserve the confidentiality of any Confidential Information received by it is entered in accordance with the Register terms of Section 8.08.
(g) Notwithstanding any other provision set forth in due coursethis Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Procter & Gamble Co), Revolving Credit Agreement (Procter & Gamble Co)
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees (other than to any Disqualified Institution) 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:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignorassignor’s entire interest) be less than (x) in the case of Revolving Credit Outstandings and Revolving Credit Commitments, $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the case of Term Loans, $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
a Lender (other than any Disqualified Institution), (iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a LenderLender (other than any Disqualified Institution), such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer Agent and the Borrower (which consents shall not be unreasonably withheld or delayed)) and (iv) if such Eligible Assignee is not, prior to the date of such assignment, a Revolving Credit Lender or an Affiliate of a Revolving Credit Lender, any such assignment with respect to Revolving Credit Outstandings and Revolving Credit Commitments shall be subject to the prior consent of each Issuer and Swing Lender; and provided, however 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 5 Business Days after having received notice thereof; 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 under Section 9.1(a), (b) or (f) (Events of Default) shall have occurred and be continuingcontinuing and (v) no Revolving Credit Commitments or Revolving Loans may be assigned to any Affiliated Lender. Any such assignment need not be ratable as among the Term Loan Facility 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 (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreementand, shall be effective unless it is entered other than in the Register in due course.respect of assignments made pursuant to Section 2.17(b) (Mitigation Obligations; Substitution of Lenders) and Section 11.1(c) (
Appears in 2 contracts
Sources: Credit Agreement (Amc Entertainment Holdings, Inc.), Credit Agreement (Amc Entertainment Inc)
Assignments and Participations. (a) Each Lender may sellmay, transferin accordance with Applicable Law and this Section 12.8, negotiate assign its Loan or assign any portion thereof to one any other Person (other than any Aracruz Party or more Eligible Assignees all or a portion any Affiliate thereof) by execution of its rights and obligations hereunder (including all of its rights and obligations with respect to the Revolving Loans, the Swing Loans and the Letters of Credit)an Assignment Agreement; provided, however, provided that:
(i) if any such partial assignment (other than to another Lender) shall be in an amount at least equal to U.S.$1,000,000 or an integral multiple of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentU.S.$500,000 in excess thereof (or, such assignment shall cover the same percentage if less, all of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitmentremaining Loan);
(ii) the aggregate amount being assigned pursuant to each such assignment shall be to an Eligible Assignee;
(determined as of the date of the Assignment and Acceptance with respect to iii) upon each such assignment, the assignor and assignee shall deliver an Assignment Agreement to the Administrative Agent;
(iv) the assignee, if it shall in no event (if less than the Assignor’s entire interest) not be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereofa Lender, except (I) with the consent of the Borrower and shall deliver to the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such LenderAdministrative Questionnaire; and
(iiiv) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, each such assignment shall be subject to the prior consent does not and will not constitute or otherwise result in a non-exempt prohibited transaction under Section 406 of the Administrative AgentU.S. Employee Retirement Income Security Act of 1974, each Issuer and the Borrower (which consents shall not be unreasonably withheld as amended, or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the consent 4975 of the Borrower shall not be required for any assignment occurring when any Event U.S. Internal Revenue Code of Default shall have occurred and be continuing1986, as amended.
(b) The parties Upon the effective date of the assignment to each assignment shall execute be effected by an Assignment Agreement and deliver to the Administrative Agent, for its acceptance and recording registration thereof in the Register (as defined in clause (c) belowpursuant to Section 12.8(d), the assignee shall have, to the extent of such assignment, the obligations, rights and benefits of a Lender hereunder holding the Commitment (or portion thereof) assigned to it and specified in such Assignment Agreement (in addition to the Commitment, if any, theretofore held by such assignee), and the assigning Lender shall, to the extent of such assignment of its Commitment, be released from the Commitment (or portion thereof) so assigned. Upon its receipt of an Assignment Agreement executed by an assigning Lender and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the an assignee of an assignment fee in the amount of $3,500 together with (other than except in the case of an assignment by a Lender to an Affiliate of such Lender) payment by the assigning or assignee Lender or by any to the Administrative Agent or their respective Affiliatesof an assignment fee of U.S.$3,000, the Administrative Agent shall: (A) from promptly accept such Assignment Agreement and after (B) on the effective date specified determined pursuant thereto record such assignment in the Register and give notice of such Assignment acceptance and Acceptance, (i) the assignee thereunder shall become a party hereto and, recordation to the extent assigning Lender, its assignee and the Obligors. Notwithstanding anything to the contrary contained herein, the Obligors shall not be obligated to pay to any Lender any amount under Section 4.1, Section 4.3, Section 4.4 and Section 4.5 that rights and obligations under is greater than the Loan Documents amount that the Obligors would have been obligated to pay such Lender’s assignor if such assigning Lender had not assigned to such assignee pursuant Lender any of its rights under this Agreement, unless at the time such assignment is made: (1) the circumstances giving rise to such Assignment and Acceptancegreater payments did not exist or (2) the Borrower consents in writing to such greater obligation. Notwithstanding the foregoing, no such assignment shall be allowed if the assignor thereof (if it is assigning less than all of its Loans) would, after such assignment, have less than U.S.$1,000,000 in Loans (such amount to be reduced on a pro rata basis upon the rights and obligations receipt of a Lender, and if such Lender were an Issuer, any payment of such Issuer hereunder and thereunder, and (iiprincipal on the Loans) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment or Commitments. Any assignment in full contravention of the Obligations) provisions of this paragraph shall be null and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto)void ab initio.
(c) Upon the request of the assigning Lender and presentment of its existing Note, the Borrower shall execute and deliver, in any event within seven (7) Business Days after its receipt of such notice, at the Borrower’s expense, one (1) or more new Notes (as requested by the holder thereof) in exchange therefor, in an aggregate principal amount equal to the principal amount of the surrendered Notes. Each such new Note shall be dated the effective date of the Assignment Agreement and in such principal amount and be payable to such Person as such holder may request and shall be substantially in the form of Exhibit A. Each such new Note shall be dated and bear interest from the date to which interest shall have been paid on the relevant surrendered Note(s) or dated the date of the relevant surrendered Note(s) if no interest shall have been paid thereon. Notes shall not be issued or transferred in denominations of less than U.S.$1,000,000; provided that if necessary to enable the registration of transfer by a holder of its entire holding of Notes, one (1) Note may be issued in a denomination of less than U.S.$1,000,000.
(d) The Administrative Agent shall maintain at its address referred to in Section 11.8 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Lenders, and the Issuers, the Revolving Credit Commitments of and principal amount of the Revolving LoansLoans owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer pursuant to the terms hereof from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent in the absence of manifest error, error and the Loan PartiesBorrower, the Administrative Agent, Agents and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register pursuant to the terms hereof as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. All payments under the Loan Documents or the Notes in respect of principal or interest shall be made to the appropriate Person named in the Register. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(e) A Lender may assign its Loans and its rights and obligations thereunder only by complying with the terms of this Agreement. No Revolving Loansuch assignment shall be effected until, Swing Loanand such assignee shall succeed to the rights of a holder only upon, Letter final acceptance and registration of Credit Obligationthe assignment by the Administrative Agent in the Register. Prior to the registration of any assignment of Loans by a holder as provided herein, Reimbursement Obligationeach Agent may treat the Person in whose name the Lenders are registered as the owner thereof for all purposes and as the Person entitled to exercise the rights represented thereby, nor any Assignment notice to the contrary notwithstanding. If requested by the Borrower or the Administrative Agent, the assignee shall provide the Borrower with a fully executed U.S. Internal Revenue Service Form W-9 or applicable Form W-8 or such other forms or certificates evidencing such transferees exemption from “backup withholding taxes” imposed pursuant to Section 3406 of the Internal Revenue Code of 1986, as amended, as may be reasonably requested by the Borrower.
(f) If any Lender assigns all or a part of its Loans and Acceptance its rights and obligations hereunder to any other Person pursuant to the provisions hereof, the assigning Lender shall be relieved of its obligations hereunder with respect to the assigned Loans and Notes, and the assignee shall be a party hereto and, to the extent that Loans and Notes and such other rights and obligations hereunder have been assigned, shall acquire such Loans and Notes and other rights and obligations of a Lender hereunder and under the other Loan Documents, and this Agreement shall be deemed to be amended to the extent necessary to reflect the transfer and assignment of such rights and obligations and the addition of such assignee, and any reference to the assigning Lender in this Agreement, the other Loan Documents or Assumption Agreementthe Notes of such Lender shall thereafter refer to such Lender and to such assignee to the extent of their respective interests.
(g) Upon receipt by the Borrower of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Notes, and
(i) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to each of the Borrower and the Administrative Agent; or
(ii) in the case of mutilation, upon surrender and cancellation thereof, the Borrower, at its own expense, shall execute and deliver, in lieu thereof, new Notes, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Notes or dated the date of such lost, stolen, destroyed or mutilated Notes if no interest shall have been paid thereon.
(h) A Lender may, in accordance with Applicable Law, without the consent of any Lender Party, sell or agree to sell to one (1) or more other Persons (other than any Aracruz Party or any Affiliate thereof) (each a “Participant”) a participation in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment, the Loans owing to it and the Note held by it); provided that such Participant shall not have any rights or obligations under this Agreement (the Participant’s rights against such Lender in respect of such participation to be those set forth in the agreements executed by such Lender in favor of the Participant). All amounts payable to any Lender under Article IV in respect of the Loans held by it, its Commitment or its Note, shall be effective unless determined as if such Lender had not sold or agreed to sell any participation in such Loan, Commitment or Note and as if such Lender were funding such Loans or Commitment in the same way that it is entered funding the portion of such Loans or Commitment in which no participations have been sold (or if all of its Loans or Commitment has been so participated, in the Register same way that it was funding such Loans or Commitment at the time of such participation). In no event shall a Lender that sells a participation agree with the Participant to take or refrain from taking any action hereunder except that such Lender may agree with the Participant that it shall not, without the consent of the Participant, agree to anything requiring the vote of 100% of the applicable Lenders hereunder.
(i) In addition to the assignments and participations permitted under the foregoing provisions of this Section, any Lender may (without notice or consent of the Administrative Agent or any other Person and without payment of any fee) assign and pledge all or any portion of its Loans and Notes to any U.S. Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors of the U.S. 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.
(j) Any Lender may, in due courseconnection with any assignment or participation or proposed assignment or participation pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to the Obligors furnished to such Lender by or on behalf of any Obligor; provided that, before 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 Obligors received by it from such Lender on the terms set forth in Section 12.21.
Appears in 2 contracts
Sources: Export Prepayment Facility Agreement and Secured Loan (Fibria Celulose S.A.), Export Prepayment Facility Agreement and Secured Loan (Votorantim Pulp & Paper Inc)
Assignments and Participations. (a) Each Lender Bank may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to interest in the Revolving LoansLoan, the Swing Loans its Note, and the Letters of Creditits Commitment); provided, however, that:
(i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitmentto an Eligible Assignee;
(ii) except in the aggregate case of an assignment to another Bank or an assignment of all of a Bank's rights and obligations under this Agreement, any such partial assignment shall be in an amount being assigned pursuant at least equal to each such assignment (determined as of the date of the Assignment and 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 an integral multiple of $1,000,000 100,000 in excess thereof, except ;
(Iiii) with the consent of the Borrower and the Administrative Agent or (II) if each such assignment is being made to by a Lender or an Affiliate or Approved Fund Bank shall be of such Lendera constant, and not varying, percentage of all of its rights and obligations under this Agreement and its Note; and
(iiiiv) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and AcceptanceAcceptance Agreement (herein so called) in the form of Exhibit K hereto, together with any Note subject to such assignment and a processing fee of $3,500. Upon such execution, delivery, and acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and AcceptanceAcceptance Agreement, (i) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to of such assignee pursuant to such Assignment and Acceptanceassignment, have the rights obligations, rights, and obligations benefits of a Lender, and if such Lender were an Issuer, of such Issuer Bank hereunder and thereunder, and (ii) the assignor thereunder assigning Bank shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under this Agreement. Upon the Loan Documentsconsummation of any assignment pursuant to this Section 14.10(a), other than those relating the assignor, Administrative Agent and Borrower shall make appropriate arrangements so that, if required, new Notes are issued to events or circumstances occurring prior to such assignment (and, in the case of an Assignment assignor and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations assignee. If the assignee is not incorporated under the Loan DocumentsLaws of the United States of America or a state thereof, such Lender it shall cease deliver to be a party heretoBorrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with Section 4.6(d).
(cb) The Administrative Agent shall maintain at its address referred to in Section 11.8 set forth on Schedule 1 hereto, a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Banks and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansLoan owing to, Swing Loans each Bank and Letter the Commitment Percentage of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer Bank from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, the Lenders Agent and the Issuers shall Banks may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, Bank hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Bank at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(c) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreement executed by the parties thereto, together with any Note subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed and is in substantially the form of Exhibit K hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(d) Each Bank may sell participations to one or more Persons in all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and its interest in the Revolving Loan); 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) the participant shall be effective unless it is entered entitled to the benefit of the yield protection provisions contained in Article 4 and the right of set-off contained in Section 14.4, and (iv) Borrower shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and such Bank shall retain the sole right to enforce the obligations of Borrower relating to its interest in the Register Revolving Loan and its Note and to approve any amendment, modification, or waiver of any provision of this Agreement (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is payable on the Revolving Loan or Note, extending any scheduled principal payment date or date fixed for the payment of interest on the Revolving Loan or Note, or extending its Commitment).
(e) Notwithstanding any other provision set forth in due coursethis Agreement, any Bank may at any time assign and pledge all or any portion of its interest in the Revolving Loan and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
(f) Any Bank may furnish any information concerning Borrower or any of its Subsidiaries in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants).
(g) Borrower shall not assign or transfer any rights or obligations under any Loan Paper or permit any Credit Party to assign or transfer any rights or obligations under any Loan Paper without first obtaining all Banks' consent, and any purported assignment or transfer without all Bank's consent is void.
Appears in 2 contracts
Sources: Credit Agreement (Exco Resources Inc), Credit Agreement (Venus Exploration Inc)
Assignments and Participations. (a) Each The 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 (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may sellassign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.07. Nothing in this Agreement, transferexpressed or implied, negotiate shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in Section 8.07(c)) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in Section 8.07(b)(ii), any Lender may assign to one or more Eligible Assignees Persons (other than an Ineligible Assignee) all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights Commitments and obligations the Advances at the time owing to it) with respect the prior written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower; provided that the Borrower shall be deemed to have consented to an assignment unless it shall have objected thereto by written notice to the Revolving Loans, the Swing Loans and the Letters of Credit)Administrative Agent within five Business Days after having received notice thereof; provided, howeverfurther, thatthat no consent of the Borrower shall be required (I) for an assignment to a Lender or an Affiliate of a Lender, (II) for an assignment of all or any portion of any Term Advance or (III) if an Event of Default has occurred and is continuing, any other assignee;
(B) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment (I) to a Lender or an Affiliate of a Lender or (II) of all or any portion of any Term Advance; and
(C) each Issuing Bank and the Swing Line Bank; provided that no such consent shall be required for an assignment of all or any portion of any Term Advance.
(ii) Assignments shall be subject to the following additional conditions:
(iA) if any such except in the case of an assignment shall be to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the applicable Commitment or Advances of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage amount of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant Commitment or the Advances of the assigning Lender subject to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignmentassignment is delivered to the Administrative Agent) shall in no event (if not be less than the Assignor’s entire interest) be lesser of $5,000,000 and 5% of the aggregate amount of the applicable Commitment that is the subject of such assignment or, in the case of Term Advances, not less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof1,000,000, except (I) with the consent unless each of the Borrower and the Administrative Agent or (II) if otherwise consent; provided that no 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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 if an Event of Default shall have has occurred and be is continuing.;
(bB) The each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; provided that this clause (B) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis, except that any assignment under the Revolving Credit Facility shall include a proportionate assignment under the Swing Line Facility, if applicable;
(C) the parties to each assignment shall execute and deliver to the Administrative AgentAgent an Assignment and Assumption, for its together with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower, the Loan Parties and their respective Related Parties or their respective Securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
(iii) Subject to acceptance and recording in the Register (as defined in clause (c) belowthereof pursuant to Section 8.07(b)(iv), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such each Assignment and AcceptanceAssumption, (i) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under of the Loan Documents have been interest assigned to such assignee pursuant to by such Assignment and AcceptanceAssumption, have the rights and obligations of a LenderLender under this Agreement, and if such the assigning Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been of the interest assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or of the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party heretohereto but shall continue to be entitled to the benefits of Sections 2.10, 2.12 and 8.04). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 8.07 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 Section 8.07(c).
(civ) The Administrative Agent Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its address referred to in Section 11.8 offices a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Lenders, and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount (and stated interest) of the Revolving LoansAdvances and L/C Disbursements owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer pursuant to the terms hereof from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register pursuant to the terms hereof as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in this Section 8.07(b)(i) and any written consent to such assignment required by this Section 8.07(b)(i), the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed (A) to make any payment required to be made by it in connection with liabilities then owed to the Administrative Agent, each Issuing Bank, the Swing Line Bank and each other Lender hereunder (including interest accrued thereon) and (B) acquire (and fund as appropriate) its full pro rata share of all Advances and participations in Letters of Credit and Swing Line Advances in accordance with its Pro Rata Share, 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 Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, assignment shall be effective for purposes of this Agreement unless it is entered has been recorded in the Register as provided in due coursethis Section 8.07(b)(v).
(c) Any Lender may, without the consent of the Borrower, the Administrative Agent, any Issuing Bank or the Swing Line Bank, sell participations to one or more banks or other entities (a “Participant”), other than an Ineligible Assignee, in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Advances owing to 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 and (iii) the Borrower, the Administrative Agent, each Issuing Bank (as applicable) 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 that 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 Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.10, 2.12 and 8.04(c) (subject to the requirements and limitations therein, including the requirements under Section 2.12(e) (it being understood that the documentation required under Section 2.12(e) 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 Section 8.07(b); provided that such Participant (A) agrees to be subject to the provisions of Section 2.17 as if it were an assignee under Section 8.07(b) and (B) shall not be entitled to receive any greater payment under Section 2.10 or 2.12, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in law (subject to Section 2.10(e)) that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.17(b) with respect to any Participant. 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 that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Participant acknowledges and agrees to be bound by the terms and provisions of any Intercreditor Agreement to the same extent and with the same effect as if such Participant were a Lender hereunder. 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, 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 Commitments, Advances, Letters of Credit or other obligations are 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.
(d) Any Lender may at any time pledge or assign a security interest in all or any 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, and this Section 8.07 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Credit Agreement (Alliance Resource Partners Lp), Credit Agreement (Alliance Holdings GP, L.P.)
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect the Advance or Advances owing to the Revolving Loans, the Swing Loans it and the Letters of CreditNote held by it); provided, however, that:
that (i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a uniform, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings all rights and Revolving Credit Commitment;
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 aggregate amount of the Advance or Advances 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 (if less than the Assignor’s entire interest) be less than U.S. $5,000,000 3,000,000 or an a higher integral multiple of U.S. $1,000,000 in excess thereof1,000,000, except (Iiii) with unless the consent of the Borrower and the Administrative Agent or (II) if such assignment is being made to a an existing Lender or an Affiliate or Approved Fund of the assigning Lender, the Borrower shall have notified the assigning Lender within five Business Days of the Borrower's receipt of notice of such Lender; and
(iii) if such Eligible Assignee is not, prior to assignment of the date Borrower's approval of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, assignment (such assignment shall be subject approval not to the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents shall not be unreasonably withheld or delayed); ) and providedif the Borrower has not notified the assigning Lender of its approval or disapproval of such assignment by such date, further, that, notwithstanding any other provision of this Section 11.2, the consent of the Borrower shall not be required for deemed to have given its approval, (iv) any assignment occurring when at any Event date prior to the date 60 days after the Closing Date shall be made on the last day of Default shall have occurred an Interest Period, and be continuing.
(bv) The the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance (such acceptance not to be withheld if the conditions set forth above in this Section 8.07 are satisfied) and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, in substantially the form of Exhibit F hereto (the "Assignment and Acceptance"), together with any Note subject to such assignment and a processing and recordation fee of U.S. $3,000. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis 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: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document, or any other instrument or document famished 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 of its Subsidiaries or with respect to the performance or observance by the Borrower or any of its Subsidiaries of any of its obligations under this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (iii) such assignee confirms that it has received a copy of this Agreement and each other Loan Document, 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 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; and (vii) such assignee agrees to be bound by the terms of this Agreement.
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvance or Advances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreementexecuted by an assigning Lender and an 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 F 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 (but only if the Borrower has approved the assignment in accordance with Section 8.07(a)), at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note a new Note payable to the order of such Eligible Assignee in an amount equal to the Advance assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a portion of its Advance hereunder, a new Note payable to the order of the assigning Lender in an amount equal to the Advance 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 effective unless dated the Closing Date and shall otherwise be in substantially the form of Exhibit A hereto.
(e) 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 the Advance or Advances owing to it is entered and the Note held by it) to any Eligible Assignee; 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 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) 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 the Register 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 due courseeach case to the extent subject to such participation, postpone the Maturity Date or any date fixed for any payment of interest on the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advance or Advances owing to it and the Note 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.
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Assignments and Participations. (a) 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 and their respective successors and assigns; provided, 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 Lenders’ prior written consent shall be null and void.
(b) Each Lender may sellwith the written consent of the Administrative Agent and, transferunless an Event of Default has occurred and is continuing, negotiate the Borrower (no such consents to be unreasonably withheld or delayed), assign to one or more Eligible Assignees other lenders or other entities all or a portion of its rights and obligations hereunder (including all of its rights and obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment and the Revolving Loans, the Swing Loans and the Letters of Credit)made by it; provided, however, that:
that (i) if any such assignment shall be is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage remainder of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
) (iiexcept such minimum amount shall not apply to an assignment by a Lender to (x) a Lender, 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 being to be assigned pursuant to each all such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than new Lenders is at least $5,000,000 or an integral a multiple of $1,000,000 in excess thereof), (ii) except (I) with as provided in the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision last sentence of this Section 11.212.07(b), the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)acceptance, an Assignment and Acceptance. Upon , together with any promissory note subject to such execution, delivery, acceptance assignment and recording in the Register and the receipt by such parties shall deliver to the Administrative Agent from Agent, for the assignee benefit of an assignment the Administrative Agent, a processing and recordation fee in the amount of $3,500 (other than except the payment of such fee shall not be required in the case of connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender); and, after receipt of such Assignment and Acceptance, the Administrative Agent shall notify the Borrower of the same with reasonable promptness (except such notice 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), (iii) no Lender shall assign any portion of its Revolving Loans or Revolving Credit Commitments to any Person that is identified in writing to the Administrative Agent on or prior to the Effective Date in the Fee Letter as an “Excluded Assignee/Participant” (it being agreed and understood that this clause (iii) shall not prohibit assignments by any Lender to any of its Affiliates or Related Funds or to any other Lender); (iv) no Lender shall assign any portion of its Revolving Loans or Revolving Credit Commitments to any Person that is a direct competitor of a Loan Party or has a controlling equity interest in, or is under common control with, a direct competitor of a Loan Party (it being agreed and understood that (x) for purposes of this clause (iv), a direct competitor of a Loan Party shall mean a Person that, as a material part of its business, manufactures or distributes Products, and (y) this clause (iv) shall not prohibit assignments by any Lender to any of its Affiliates or Related Funds, to any other Lender or to any commercial bank), and (v) no written consent of the Administrative Agent or their respective Affiliates) the Borrower shall be required in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender. Upon such execution, delivery and acceptance, from and after the effective date specified in such each Assignment and Acceptance, which effective date shall be at least 3 Business Days after the delivery thereof to the Administrative Agent (ior such shorter period as shall be agreed to by the Administrative Agent and the parties to such assignment), (A) the assignee thereunder shall become a party hereto “Lender” hereunder and, in addition to the extent that rights and obligations under the Loan Documents have been assigned hereunder held by it immediately prior to such assignee pursuant to such Assignment and Acceptanceeffective date, have the rights and obligations of a Lender, hereunder that have been assigned to it pursuant to such Assignment and if such Lender were an Issuer, of such Issuer hereunder and thereunder, Acceptance and (iiB) the assignor assigning Lender thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto). Notwithstanding anything to the contrary contained in this Section 12.07(b), a Lender shall not assign all or any portion of its rights or obligations under this Agreement to any Loan Party, any Affiliate of any Loan Party, the Sponsor or any Affiliate of the Sponsor. Notwithstanding anything to the contrary contained in this Section 12.07(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 Agents or to any other Person (a “Related Party Assignment”); provided, however, that (I) the Borrower and the Administrative Agent may continue to deal solely and directly with such assigning Lender until an Assignment and Acceptance has been delivered to the Administrative Agent for recordation on the Register, (II) the Collateral Agent may continue to deal solely and directly with such assigning Lender until receipt by the Collateral Agent of a copy of the fully executed Assignment and Acceptance pursuant to Section 12.07(e), (III) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Agents shall not affect the legality, validity, or binding effect of such assignment, and (IV) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date specified in such Assignment and Acceptance and recorded on the Related Party Register (as defined below).
(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 Administrative Agent shall maintain shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain, or cause to be maintained at its address referred to in Section 11.8 the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recording recordation of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of of, and the principal amount of the Revolving Loans (and stated interest thereon) (the “Registered Loans, Swing Loans ”) and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (time. Subject to the “Revolving Credit Facility Register” or penultimate sentence of this Section 12.07(d), the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agents and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving In the case of an assignment pursuant to the last sentence of Section 12.07(b) as to which an Assignment and Acceptance is not delivered to the Administrative Agent, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register (the “Related Party Register”) comparable to the Register on behalf of the Borrower. The Related Party Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Borrower pursuant to Section 12.07(b) (which consent of the Administrative Agent must be evidenced by the Administrative Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, 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 or the Related Party 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 or the Related Party 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 on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(g) In the event that any Lender sells participations in a Registered Loan, Swing Loansuch Lender shall, acting for this purpose as a non-fiduciary agent of the Borrower, maintain 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 Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Any Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.08(d), (f) and (g).
(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 Revolving Credit Commitments, the Revolving Loans made by it and its Pro Rata Share of the Letter of Credit ObligationObligations); provided, Reimbursement Obligationthat (i) such Lender’s obligations under this Agreement (including without limitation, nor its Revolving Credit 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; (iii) a participant shall not be entitled to require such Lender to take or omit to take any Assignment and Acceptance action hereunder except (A) action directly effecting an extension of the maturity dates or Assumption decrease in the principal amount of the Revolving Loans or Letter of Credit Obligations, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Revolving 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 10.11 of this Agreement or any other Loan Document); (iv) no Lender shall participate any portion of its Revolving Loans or Revolving Credit Commitments to any Person that is identified in writing to the Administrative Agent on or prior to the Effective Date in the Fee Letter as an “Excluded Assignee/Participant” (it being agreed and understood that this clause (iv) shall not prohibit participations by any Lender to any of its Affiliates or Related Funds or to any other Lender); and (v) no Lender shall participate any portion of its Revolving Loans or Revolving Credit Commitments to any Person that is a direct competitor of a Loan Party or has a controlling equity interest in, or is under common control with, a direct competitor of a Loan Party (it being agreed and understood that (x) for purposes of this clause (v), a direct competitor of a Loan Party shall mean a Person that, as a material part of its business, manufactures or distributes Products, and (y) this clause (v) shall not prohibit participations by any Lender to any of its Affiliates or Related Funds, to any other Lender or to any commercial bank). The Loan Parties agree that each participant shall be effective entitled to the benefits of Section 2.08 and Section 4.05 of this Agreement with respect to its participation in any portion of the Revolving Credit Commitments and the Revolving Loans as if it was a Lender, provided, however, that a participant shall not be entitled to receive any greater payment under Sections 2.08 or 4.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, unless it (I) the sale of the participation to such participant is entered made with the Borrower’s prior written consent, or (II) such entitlement to a greater payment resulted from a Change in Law after the Register in due courseparticipant became a participant.
(j) If (i) the Borrower is obligated to make any material payments under Section 2.08 and Section 4.05 to any Lender, (ii) any Lender becomes a Defaulting Lender, or (iii
Appears in 1 contract
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees and delegate all or a any portion of its rights and obligations hereunder duties under the Loan Documents (including all of the Obligations owed to it and its rights and obligations Commitment) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with respect the prior written consent (such consent not to the Revolving Loans, the Swing Loans and the Letters of Credit)be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, howeverthat no consent of Administrative Borrower shall be required (1) if an Event of Default has occurred and is continuing, that:or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender or a Related Fund; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent within 10 Business Days after having received notice thereof; and
(iB) if any Agent; provided that no such assignment consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;a Lender (other than a natural person).
(ii) Assignments shall be subject to the aggregate 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 Affiliate of a Loan Party,
(C) the amount being assigned pursuant of the Commitments and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignmentassignment is delivered to Agent) shall be in no event a minimum amount (if less than the Assignor’s entire interestunless waived by Agent) be less than of $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (except such minimum amount shall not apply to (I) with the consent an assignment or delegation by any Lender to any other Lender, an Affiliate of the Borrower and the Administrative Agent any Lender, or a Related Fund of such Lender or (II) if such assignment a group of new Lenders, each of which is being made to a Lender or an Affiliate of each other or Approved a Related Fund of such Lender; andnew Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(iiiD) 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 each partial assignment shall be subject to made as an assignment of a proportionate part of all the prior consent of the Administrative Agent, each Issuer assigning Lender’s rights and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of obligations under 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.Agreement,
(bE) The the parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Agent an Assignment and Acceptance. Upon ; provided, that Borrower and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such executionassignment, deliverytogether with payment instructions, acceptance addresses, and recording in related information with respect to the Register Assignee, have been given to Administrative Borrower and Agent by such Lender and the receipt Assignee,
(F) unless waived by Agent, the Administrative Agent from the assignee of an assignment assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing fee in the amount of $3,500 3,500, and
(other than G) the Assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates“Administrative Questionnaire”), and
(b) from From and after the effective date specified in such that Agent receives the executed Assignment and AcceptanceAcceptance and, if applicable, payment of the required processing fee, (i) the assignee Assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunderunder the Loan Documents, and (ii) the assignor thereunder assigning Lender shall, to the extent that rights and obligations hereunder and under this Agreement the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligationswith respect to Section 10.3) and be released from its any future obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party heretohereto and thereto); provided, 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 15 and Section 17.8(a).
(c) The Administrative Agent shall maintain at By executing and delivering an Assignment and Acceptance, the assigning Lender 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 Loan 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 address referred to in Section 11.8 obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of each this Agreement, together with 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 delivered 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 accepted authorizes Agent to take such actions 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 all of the obligations which by the terms of this Agreement are required to be performed by it and as a register for the recording Lender.
(d) Immediately upon Agent’s receipt of the names required processing fee, if applicable, and addresses delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Lenders Assignee and the Issuers, resulting adjustment of the Revolving Credit Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, its Commitment, and principal amount the other rights and interests of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each that Lender and each Issuer from time to time (the “Revolving Credit Facility RegisterOriginating Lender”) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a “Lender” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not 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) Borrower, 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 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 Collateral or guaranties (except to the extent expressly provided herein or in any 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 such Participant through such Lender (other than a waiver of default interest), or (E) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) all amounts payable by 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 Revolving Credit Facility Register 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, Agent, Borrower, the Collateral, 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.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.8, disclose all documents and information which it now or hereafter may have relating to Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of the Bank of Canada and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Agent (acting solely for this purpose as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Commitments (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Commitments to an Affiliate of such Lender or a Related Fund of such Lender (i) 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) and (ii) 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), Borrower 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. In the case of any assignment by a Lender of all or any portion of its Commitments to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, acting solely for this purpose as a non-fiduciary agent on behalf of Borrower, shall 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 such Registered Loans that is subject to such participations) (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. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register to the extent it has one) available for inspection review by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due courseas Borrower may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Birks Group Inc.)
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more other Lenders or Eligible Assignees all or a portion of the Notes held by it and a commensurate portion of its rights and obligations hereunder (including all of its rights and obligations with respect to under the Revolving Loans, the Swing Loans and the Letters of Credit)-118- 126 other Loan Documents; provided, however, that:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount of the Loan 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof5,000,000.00, except (Ix) with the consent of the Borrower and the Administrative Agent or and Borrower (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
(iii) if unless such Eligible Assignee is notAssignee, prior to following the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent will hold more than $5,000,000.00 of the Administrative AgentLoan), each Issuer and the Borrower (which consents provided that Borrower's consent shall not be unreasonably withheld withheld, or delayed); and provided(y) during the continuance of an Event of Default, further, that, notwithstanding any other provision of this Section 11.2, the consent or (z) a Lender may assign a portion of the Borrower Notes held by it to another existing Lender or Lenders only, provided that the aggregate amount of the Notes retained by the assignor after the transfer pursuant to this clause (z) shall not in no event be required for any assignment occurring when any Event of Default less than $10,000,000, and (ii) each assignee hereunder shall have occurred and also be continuing.
(b) an Eligible Assignee. The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and Acceptance, together with the Notes (or an Affidavit of Loss and Indemnity with respect to such Notes satisfactory to the Administrative Agent) subject to such assignment. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such Assignment and Acceptance, (iA) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiB) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment Documents (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, 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: (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 of the statements, warranties or representations made in or in connection with this Agreement or any other Loan Document furnished pursuant thereto 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 or 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 this Agreement or any other Loan Document or of any other instrument or document furnished pursuant hereto or thereto; (iii) such assigning Lender confirms that it has delivered to the assignee and the assignee confirms that it has received a copy of this Agreement and each of the Loan Documents together with a copy of the most recent financial statements delivered by the Borrower to the Lenders pursuant to each of the clauses of Section 6.11 (or if no such statements have been delivered, the financial statements referred to in Section 4.5 of this Agreement) 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 assignor Lender or the other Agents, 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 -119- 127 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 and the other Loan Documents as are delegated to the Administrative 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 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 11.8 10.2 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and Borrower, the Facility Agents Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving LoanThe Administrative Agent shall supply to the Borrower promptly after any amendment thereto, Swing Loan, Letter a copy of Credit Obligation, Reimbursement Obligation, nor any the amended Register.
(d) Upon its receipt of an Assignment and Acceptance or Assumption Agreement, shall be effective unless executed by an assigning Lender and an assignee representing that it is entered an Eligible Assignee, together with the Notes subject to such assignment, 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 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 due courseexchange for such surrendered Notes, new Notes to the order of such Eligible Assignee in an amount equal to the Notes assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a portion of the Notes hereunder, new Notes to the order of the assigning Lender in an amount equal to the amounts retained by it hereunder. Such new Notes shall be dated the same date as the Surrendered Notes and be in substantially the form of Notes executed as of the Closing Date.
(e) In addition to the other assignment rights provided in this Section 10.7, each Lender may assign, as collateral or otherwise, any of its rights under this Agreement (including, without limitation, rights to payments of principal or interest on the Loan) to any Federal Reserve Bank without notice to or consent of the Borrower or the Administrative Agent; provided, however, that no such assignment shall release the assigning Lender from any of its obligations hereunder. The terms and conditions of any such assignment and the documentation evidencing such assignment shall be in form and substance satisfactory to the assigning Lender and the assignee Federal Reserve Bank.
(f) Each Lender may sell participations to one or more banks or other Persons in or to all or a portion of its rights and obligations under the Loan Documents (including, without limitation, all or a portion of the Notes held by it) at any time without the consent of the Administrative Agent or any other Person. The terms of such participation shall not, in any event, -120- 128 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 any Loan Party therefrom, or to the exercising or refraining from exercising any powers or rights which such Lender may have under or in respect of the Loan Documents (including, without limitation, the right to enforce the obligations of the Loan Parties), 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, except interest at the Default Rate), to which such participant would otherwise be entitled under such participation. In the event of the sale of any participation by any Lender, (i) such Lender's obligations under the Loan Documents (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 such Notes and Obligations for all purposes of this Agreement; and (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.
(g) Each participant shall be entitled to the benefits of Sections 2.11, 2.13 and 2.15 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 pay to any assignee or participant of any interest of any Lender, under Section 2.11, 2.13 or 2.15, any sum in excess of the sum which if the Borrower would not at the time of such assignment have been obligated to pay to such assignor Lender any such amount in respect of such interest had such assignment not been effected or had such participation not been sold.
Appears in 1 contract
Assignments and Participations. (ai) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving Loans, the Swing Loans and the Letters of Creditits Revolving Credit Commitment); provided, however, that:
(i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitmentto an Eligible Assignee;
(ii) except in the aggregate 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 being assigned pursuant at least equal to each such assignment (determined as of the date of the Assignment and 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 an integral multiple of $1,000,000 in excess thereof, except ;
(Iiii) with the consent of the Borrower and the Administrative Agent or (II) if each such assignment is being made to by a Lender or an Affiliate or Approved Fund shall be of such Lendera constant, and not varying, percentage of all of its rights and obligations under this Agreement; and
(iiiiv) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording Acceptance in the Register and the receipt by the Administrative Agent from the assignee form of an assignment Exhibit B hereto, together with a processing fee in the amount of $3,500 (other than 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 AIH III nor the Irish Holdco Party 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 a Lender to an Affiliate the provisions of Section 4.6 hereof)) than it would have incurred had such Lender or by any Agent or their respective Affiliates) from assignment not taken place. Upon execution, delivery, and after the effective date specified in acceptance of such Assignment and Acceptance, (i) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to of such assignee pursuant to such Assignment and Acceptanceassignment, have the rights obligations, rights, and obligations benefits of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder assigning Lender shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register If the assignee is a Non-U.S. Lender, it shall be available for inspection by deliver to the Borrower Borrowers and the Facility Agents at any reasonable time and Agent certification as to exemption from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter deduction or withholding of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered Taxes in the Register in due courseaccordance with Section 4.6.
Appears in 1 contract
Sources: Credit Agreement (Aircastle LTD)
Assignments and Participations. (a) Each The 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 (including any Affiliate of an Issuing Lender that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may sellassign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 11.06. Nothing in this Agreement, transferexpressed or implied, negotiate shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of an Issuing Lender that issues a Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section 11.06) and, to the extent expressly contemplated hereby, the related parties of each of the Administrative Agent, the Issuing Lenders and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees assignees all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving Loans, the Swing Loans Commitment and the Letters of Credit); provided, however, thatLoans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:
(iA) if any such assignment the Borrower, PROVIDED that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee;
(B) the Administrative Agent, PROVIDED that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Tranche A Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(C) each Issuing Lender (only in the case of any assignment of Revolving Credit Commitments and/or Revolving Credit Loans).
(ii) Assignments shall be subject to the following additional conditions: CREDIT AGREEMENT
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment's Commitment or Loans of any Class, such assignment shall cover the same percentage amount of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignmentassignment is delivered to the Administrative Agent) shall in no event (if less than the Assignor’s entire interest) not be less than $5,000,000 or or, in the case of any Incremental Term Loan having an integral multiple Incremental Term Loan Maturity Date falling after the Tranche A Term Loan Maturity Date, such minimum amount (but not less than $1,000,000) as the Borrower and the Administrative Agent shall mutually agree at the time of $1,000,000 in excess thereofthe making of such Incremental Term Loan, except (I) with the consent unless each of the Borrower and the Administrative Agent or (II) if otherwise consent, PROVIDED that no 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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 if an Event of Default shall have has occurred and be is continuing.;
(bB) The each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement, PROVIDED that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender's rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative AgentAgent an Assignment and Assumption, for its together with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(iii) Subject to acceptance and recording in the Register thereof pursuant to paragraph (as defined in clause (cb)(iv) below)of this Section 11.06, an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such each Assignment and Acceptance, (i) Assumption the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under of the Loan Documents have been interest assigned to such assignee pursuant to by such Assignment and AcceptanceAssumption, have the rights and obligations of a LenderLender under this Agreement, and if such the assigning Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been of the interest assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or of the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party heretohereto but shall continue to be entitled to the benefits of Sections 5.01, 5.05, 5.06, 5.07 and 11.03 hereof). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.06 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 paragraph (c) of this Section 11.06.
(civ) The Administrative Agent Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its address referred to in Section 11.8 offices a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Lenders, and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) LC Disbursements owing to to, each Lender and each Issuer pursuant to the terms hereof from time to time (the “Revolving Credit Facility Register” or the “Register”"REGISTER"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest errorconclusive, and the Loan PartiesBorrower, the Administrative Agent, the Issuing Lenders and the Issuers shall Lenders may treat each Person whose name is recorded in the Revolving Credit Facility Register pursuant to the CREDIT AGREEMENT terms hereof as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Revolving Credit Facility Register shall be available for inspection by the Borrower Borrower, any Issuing Lender and the Facility Agents any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee's completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section 11.06 and any written consent to such assignment required by paragraph (b) of this Section 11.06, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, assignment shall be effective for purposes of this Agreement unless it is entered has been recorded in the Register as provided in due coursethis paragraph.
(i) Any Lender may, without the consent of the Borrower, the Administrative Agent, any Issuing Lender or the Swingline Lender, sell participations to one or more banks or other entities (a "PARTICIPANT") in all or a portion of such Lender's rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); PROVIDED that (A) such Lender's obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, each Issuing Lender 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 described in the first proviso in the first sentence of Section 11.04 hereof or in the proviso in the second sentence of Section 11.04 hereof that affects such Participant. Subject to paragraph (c)(ii) of this Section 11.06, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 5.01, 5.05, 5.06 and 5.07 hereof to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section 11.06. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 4.07(a) hereof as though it were a Lender, PROVIDED that such Participant agrees to be subject to Section 4.07(b) hereof as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Section 5.01, 5.05, 5.06 or 5.07 hereof 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 5.07 hereof 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 5.07(e) hereof as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section 11.06 shall not apply to any such pledge or assignment of a security interest; PROVIDED CREDIT AGREEMENT that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(e) Anything in this Section 11.06 to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan held by it hereunder to the Borrower or any of its Subsidiaries or any Affiliates without the prior consent of each Lender.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignorassignor’s entire interest) be less than $5,000,000 1,000,000 or an integral multiple of $1,000,000 100,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
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 the prior consent of the Administrative Agent, each Issuer Agent and the Borrower (which consents consent of the Borrower shall not be unreasonably withheld or delayed); provided, however, 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 5 Business Days of having received notice thereof; 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 specified in Section 9.1(a), (b) or (f) (Events of Default) shall have occurred and be continuing.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreementand, shall be effective unless it is entered other than in the Register in due course.respect of assignments made pursuant to Section 2.17 (Substitution of Lenders) and Section 11.1(c) (
Appears in 1 contract
Assignments and Participations. (a) No Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 8.07(b), (ii) by way of participation in accordance with the provisions of Section 8.07(f), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 8.07(h) (and any other attempted assignment or transfer by any Lender shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, participants to the extent provided in Section 8.07(f) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Each Lender may selland, transferif demanded by the Borrower in accordance with Section 2.20, negotiate or upon at least five Business Days’ notice to such Lender and the Agent, will assign to one or more Eligible Assignees Persons all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to Revolving Credit Commitment, the Revolving LoansCredit Advances owing to it, the Swing Loans its participations in Letters of Credit and the Letters of CreditRevolving Credit Note or Revolving Credit Notes held by it); provided, however, that:
that (i) if any each such assignment shall be of a constant, and not a varying, percentage of all the assigning Lender’s Lenders’ rights and obligations under this Agreement with respect to the Revolving Credit Outstandings and Advances or the Revolving Credit CommitmentCommitment assigned, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) except in the aggregate case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than $5,000,000 10,000,000 or an integral multiple of $1,000,000 in excess thereof, except unless the Borrower and the Agent otherwise agree, (Iiii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower in accordance with Section 2.20 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 in accordance with Section 2.20 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 Revolving Credit Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount, its participations in Letters of Credit and all other amounts payable to such Lender under this Agreement, (vi) the consent of the Borrower and the Administrative Agent or Issuing Banks (II) if such assignment is being made consent not 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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 that increases the obligation of Default shall have occurred and be continuing.
the assignee to participate in exposure under one or more Letters of Credit (bwhether or not then outstanding), (vii) The the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and AcceptanceAssumption, together with an Administrative Questionnaire from any assignee that is not a Lender, and any Revolving Credit Note subject to such assignment and a processing and recordation fee of $3,500 payable by the assignor or the Eligible Assignee, as applicable, 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 the Borrower except that no such recordation fee shall be payable in the case of an assignment made at the request of the Borrower to an Eligible Assignee that is an existing Lender, and (viii) any Lender may, without the approval of the Borrower and the Agent, assign all or a portion of its rights to any of its Affiliates. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and AcceptanceAssumption, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto), but shall continue to be entitled to the benefits of Section 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an event arising prior such assignment) and be released from its obligations (other than its obligations under Section 7.06 to the extent any claim thereunder relates to an event arising prior to such assignment) under this Agreement.
(c) 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 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 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, including providing such documentation as is required under Section 2.14(f).
(d) 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 Revolving Credit Notes subject to such assignment and the processing and recordation fee referred to in Section 8.07(b), 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.
(e) The Administrative Agent Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assumption Agreement and each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansCredit Advances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No .
(f) Each Lender may sell participations to any Person (other than a natural person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, or 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 Revolving LoanCredit Advances owing to it and any Revolving Credit Note or Revolving Credit Notes held by it); provided, Swing Loanhowever, Letter 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 Revolving Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Note for all purposes of this Agreement, (iv) the Borrower, the 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 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. The Borrower agrees that each participant shall be effective unless entitled to the benefits of Sections 2.11, 2.14 and 8.04(c) (subject to the requirements and limitations therein, including the requirements under Section 2.14(f) (it is entered 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 Section 8.07(b); provided that such participant (A) agrees to be subject to the provisions of Sections 2.11, 2.14 and 2.20 as if it were an assignee under Section 8.07(b); and (B) shall not be entitled to receive any greater payment under Section 2.11 or 2.14, with respect to any participation, than its participating Lender would have been entitled to receive.
(g) 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 and the Borrower shall be a named third party beneficiary under such confidentiality agreement executed by such assignee or participant or proposed assignee or participant.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall 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 Revolving Credit Notes or other obligations under this Agreement (the “Participant Register”), provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to the Borrower or any other Person (including the identity of any participant or any information relating to a participant’s interest in due courseany Revolving Credit Advance or its other obligations under this Agreement or any Revolving Credit Note) except to the extent that such disclosure is necessary to establish that the Revolving Credit Advances or such other obligations are 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, Borrower and the Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding 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.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Revolving Credit Advances owing to it and any Revolving Credit Note or Revolving Credit Notes held by it) to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
Appears in 1 contract
Assignments and Participations. (a) The Borrower may not assign or otherwise transfer any of its rights or obligations hereunder or under the Notes or the Letters of Instructions without the prior consent of all of the Lenders and the Administrative Agent.
(b) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion any of its rights and obligations hereunder Loans or Commitments, in whole or in part (including all of its rights and obligations with respect to the Revolving Loansbut if in part, 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 Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the in a minimum aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall U.S.$ 10,000,000 and, if greater, in no event (if less than the Assignor’s entire interest) be less than $5,000,000 or an amount which is an integral multiple of $1,000,000 U.S.$1,000,000), upon notice to the Administrative Agent and the Borrower; provided that no Loans or Commitments may be assigned to (A) any Sanctioned Person or (B) any Person (other than a Lender) that is deemed to be domiciled in excess thereofany country that is considered a tax haven under the Peruvian Income Tax Act, except as modified from time to time. To the extent that an assignment of all or any portion of a Lender’s Loans or Commitments pursuant to this Section 11.08(b) (IAssignments and Participations) would, due to circumstances existing at the time of such assignment, result in the Borrower being required to pay amounts under Article V (Yield Protection, Etc.) that are greater than those it was required to pay in respect of the assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased amounts. If recorded in the Register, upon execution and delivery by the assignee to the Borrower and the Administrative Agent of an Assignment and Assumption Agreement, the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the Borrower and the Administrative Agent or (II) if such assignment is being made to Agent), the obligations, rights and benefits of a Lender hereunder holding the Loans and/or Commitments (or an Affiliate or Approved Fund of such Lender; and
portions thereof) assigned to it (iii) if such Eligible Assignee is not, prior in addition to the date Loans and/or Commitments, if any, theretofore held by such assignee). Any assignee under this clause (b) (other than an assignee who is a Lender) shall deliver all “know your customer” documents and information reasonably requested by the Administrative Agent pursuant to Anti-Money Laundering Laws. To the extent that an assignment of any portion of a Lender’s Loans or Commitments would, at the time of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer and the Borrower result in increased costs under Article V (which consents 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.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.
Appears in 1 contract
Sources: Loan Agreement (Aenza S.A.A.)
Assignments and Participations. (a) Each Lender (other than a Designated Bidder) may sell, transfer, negotiate or assign to one or more Eligible Assignees banks or other entities all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving LoansCommitment, the Swing Loans A Advances owing to it and the Letters of CreditNote or Notes held by it); provided, however, that:
(i) if any that each such assignment shall be of to an Eligible Assignee, and the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant parties to each such assignment (determined as of the date of the Assignment and 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 an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, 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 $3,000, and shall send to the Borrower an executed counterpart of such Assignment and Acceptance, and provided further, however, that (i) the amount of the Commitment of the assigning Lender being assigned to the assignee pursuant to each such assignment (determined as of the date of the Assignment) must be equal to or greater than $25,000,000, 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 Lender Affiliate or as required by the Borrower pursuant to Section 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). Upon such the execution, delivery, acceptance and recording in the Register of each Assignment and the receipt Acceptance by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) parties thereto, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (y) except as otherwise provided in clause (ii) above, the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, except in the circumstances contemplated by clause (ii) above, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto, provided, however, that such assigning Lender shall retain any claim with respect to any fee, interest, cost, expense or indemnity which accrues, or relates to an event that occurs, prior to the date of such assignment pursuant to Section 2.03, 2.06, 2.07, 2.11, 2.12, 2.15 or 8.04).
(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 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 (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 11.8 8.02 a copy of each Assignment and Acceptance and each Designation Agreement delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the Issuersand, with respect to Lenders other than Designated Bidders, the Revolving Credit Commitments of Commitment of, and principal amount of the Revolving LoansA Advances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”"REGISTER"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreement, shall be effective unless executed by an assigning Lender and an assignee representing that it is entered 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 52 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 due courseexchange 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 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 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 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 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 make 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 H 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 create a security interest in all or any portion of its rights under this Agreement (including the Advances owing to 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.
Appears in 1 contract
Sources: Bridge Revolving Credit Agreement (Burlington Resources Inc)
Assignments and Participations. (a) Each Subject to the conditions set forth in Section 9.2(b), each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees 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, thatwith the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(i) the Borrower, PROVIDED, HOWEVER, that no consent of the Borrower shall be required for an assignment to (x) a Lender or an Affiliate or Approved Fund of a Lender or (y) if an Event of Default has occurred and is continuing or such assignment is made in connection with the primary syndication of the Revolving Credit Commitments or the Term Loans by the Arranger, any other assignee;
(ii) the Administrative Agent; and
(iii) in the case of an assignment of all or a portion of the Revolving Credit Commitment or Revolving Credit Outstandings of any Lender, each Issuer and the Swing Loan Lender.
(b) Assignments shall be subject to the following conditions:
(i) except in the case of an assignment to a Lender or an Affiliate or Approved Fund of a Lender:
(A) in the case of any Term Loan, the aggregate amount being assigned pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not (if less than the Assignor's entire interest in such Term Loan) be 110 less than $1,000,000 (if a Tranche B Term Loan) or EURO 1,000,000 (if a Tranche A (Euro) Term Loan); or
(B) in the case of any Revolving Credit Commitment or Revolving Credit Outstandings, the aggregate amount of the Revolving Credit Commitment (or, if the Revolving Credit Commitments have been reduced to zero, the Dollar Equivalent of the Revolving Credit Outstandings) being assigned to such assignment (determined as of the date the Assignment and Assumption with respect to such assignment if delivered to the Administrative Agent) shall not (if less than the Assignor's entire interest in the Revolving Credit Facility) be less than $1,000,000 unless in any, such case, each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Loans or the Commitments assigned, PROVIDED, HOWEVER, that this clause shall not be construed to prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis;
(iii) if any such assignment shall be of the assigning Lender’s 's Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s 's Revolving Credit Outstandings and Revolving Credit Commitment;
(iiiv) if any such assignment shall be of the assigning Lender's Tranche A (Euro) Term Loans and Tranche A (Euro) Term Loan Commitment, such assignment shall cover the same percentage of such Lender's Tranche A (Euro) Term Loans and Tranche A (Euro) Term Loan Commitment;
(v) if any such assignment shall be of the assigning Lender's Tranche B Term Loan and Tranche B Term Loan Commitment, such assignment shall cover the same percentage of such Lender's Tranche B Term Loan and Tranche B Term Loan Commitment;
(vi) the aggregate amount being assigned pursuant parties to each such assignment shall (determined as of the date of the Assignment and Acceptance with respect to such assignmentA) shall in no event (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each assignment shall electronically execute and deliver to the Administrative Agent, for its acceptance and recording in recording, an Assignment and Acceptance via an electronic settlement system acceptable to the Register Administrative Agent (as defined in clause which initially shall be ClearPar, LLC) or (cB) below)manually execute and deliver to the Administrative Agent, for its acceptance and recording, an Assignment and Acceptance, together with in the case of clause (B), a processing and recordation fee of US$3,500;
(vii) the assignee, if not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and the applicable tax forms, duly completed by such assignee; and
(viii) if the assigning Lender's Loans are evidenced by a Note, the Assignor shall deliver to the Administrative Agent any Note subject to such assignment. Any such assignment need not be ratable as among the Tranche A (Euro) Term Loan Facility, the Tranche B Term Loan Facility or the Revolving Credit Facility. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with Section 9.2(a) and (b) 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 Section 9.2(h). If the consent of the Borrower to an assignment is required hereunder (including a consent to an assignment which does not meet the minimum assignment thresholds specified in Section 9.2(b)(i)), the Borrower shall be deemed to have given its consent five Business Days after the date written notice thereof has been delivered by the assigning Lender (through the Administrative Agent or ClearPar) to the Borrower unless such consent is expressly refused by the Borrower prior to such fifth Business Day.
(c) Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) Assignment and Acceptance, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(cd) The Administrative Agent shall maintain at its address referred to in Section 11.8 9.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "REGISTER"). Any assignment pursuant to this Section 9.2 shall not be effective until such assignment is recorded in the Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility entries in the Register shall be available for inspection by the Borrower and Borrower, the Facility Agents Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(e) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any a duly completed Assignment and Acceptance or Assumption Agreementexecuted by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be effective a Lender hereunder), the processing and recordation fee required by paragraph (b)(vi) above (if any), the applicable tax forms completed in respect of the assignee (unless it is entered the assignee shall already be a Lender hereunder) and, if required, the written consent of the Borrower, the Administrative Agent, each Issuer and the Swing Loan Lender to such assignment, the Administrative Agent shall (i) accept such 112 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, if requested by such assignee, execute and deliver to the Administrative Agent, new Notes to the order of such assignee in due coursean amount equal to the Commitments and Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Note for exchange in connection with the assignment and has retained Commitments or Loans hereunder, new Notes to the order of the assigning Lender in an amount equal to the Commitments and Loans retained by it hereunder. Such new Notes shall be dated the same date as the surrendered Notes and be in substantially the form of Exhibit ▇-▇, ▇-▇ or B-3 hereto, as applicable.
(f) Notwithstanding anything to the contrary contained herein, any Lender (a "GRANTING LENDER") may grant to a special purpose funding vehicle (a "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 Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; PROVIDED, HOWEVER, that (i) nothing herein shall constitute a commitment by any SPC to make any Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the related Commitment of the Granting Lender to the same extent, and as if, such Loan 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 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, such party 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 9.2, 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 Loans to the Granting Lender 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 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 9.2(f) may not be amended without the written consent of each SPC.
(g) In addition to the other assignment rights provided in this Section 9.2, each Lender may assign, as collateral or otherwise, a security interest in any of its rights under this Agreement (including rights to payments of principal or interest on the Loans) to (i) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrower or the Administrative Agent and (ii) any trustee for the benefit of the holders of such Lender's Securities; PROVIDED, HOWEVER, that no such assignment shall release the assigning Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. 113
(h) 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 Term Loans, Revolving Loans and Letters of Credit). 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 any Loan Party therefrom, or to the exercising or refraining from exercising any powers or rights which such Lender may have under or in respect of the Loan Documents (including the right to enforce the obligations of the Loan Parties), except if any such amendment, waiver or other modification or consent would (i) 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 (ii) result in the release of the Administrative Agent's Lien on all or substantially all of the Collateral other than in accordance with Section 8.7(b). In the event of the sale of any participation by any Lender, (A) such Lender's obligations under the Loan Documents shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties for the performance of such obligations, (C) such Lender shall remain the holder of such Obligations for all purposes of this Agreement, and (D) 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. Each participant shall be entitled to the benefits of Section 2.14(d), Section 2.15 and Section 2.16 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 pay to any participant of any interest of any Lender, under Section 2.14(d), Section 2.15 or Section 2.16 any sum in excess of the sum which the Borrower would have been obligated to pay to such Lender in respect of such interest had such participation not been sold.
(i) Any Issuer may at any time assign its rights and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the Borrower, the Administrative Agent, such Issuer and such Lender. If any Issuer ceases to be a Lender hereunder by virtue of any assignment made pursuant to this Section 9.2, then, as of the effective date of such cessation, such Issuer's obligations to issue Letters of Credit pursuant to Section 2.4 shall terminate and such Issuer shall be an Issuer hereunder only with respect to outstanding Letters of Credit issued prior to such date.
Appears in 1 contract
Assignments and Participations. (a) Each Lender The 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, except that the Borrower may sellnot assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Bank then committed to make advances or extend letters of credit to it (other than an assignment effectuated by a merger or consolidation permitted by Section 5.2(e) to the surviving Person referred to herein). No Bank may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of this Section, transfer(ii) by way of participation in accordance with the provisions of subsection (d) of this Section, negotiate or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) or (h) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Bank may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving Loans, the Swing Loans Commitment and the Letters of CreditAdvances at the time owing to it); provided, however, that:
provided that (i) if any such except in the case of an assignment shall be of the entire remaining amount of the assigning LenderBank’s Revolving Credit Outstandings Commitment and Revolving Credit Commitmentthe Advances at the time owing to it, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant of the Commitment (which for this purpose includes Advances outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Advances of the assigning Bank subject to each such assignment (assignment, determined as of the date of the Assignment and Acceptance Assumption with respect to such assignmentassignment is delivered to the Administrative Agent (or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall in no event (if less than the Assignor’s entire interest) not be less than $5,000,000 10,000,000 (or an integral multiple of $1,000,000 in excess thereofits remaining commitments, except (Iif less) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent unless each of the Administrative Agent, each Swingline Lender and each L/C Issuer and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consent (which consents shall each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and provided, further, that, notwithstanding any other provision of obligations under this Section 11.2, Agreement with respect to the consent of Advances or the Borrower shall not be required for Commitment assigned; (iii) any assignment occurring when any Event of Default shall have occurred a Commitment must be approved by the Administrative Agent and each L/C Issuer, in each case (1) such approval not to be continuing.
unreasonably withheld, delayed or conditioned and (b2) The unless the Person that is the proposed assignee is itself a Bank or an Affiliate of a Bank (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties to each assignment shall (1) execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Agent an Assignment and Acceptance. Upon such executionAssumption or (2) to the extent applicable, delivery, acceptance an agreement incorporating an Assignment and recording in the Register and the receipt Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent from and the assignee of an assignment parties to the Assignment and Assumption are participants, together with a processing and recordation fee in the amount of $3,500 and the Eligible Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an administrative questionnaire and shall deliver to the Borrower, all relevant information for notices under the Loan Documents to such assignee; provided that for the purposes of the forgoing clauses (other than in the case b)(i) and (b)(iii), no consent of an assignment by a Lender to an Affiliate of such Swingline Lender or by any L/C Issuer shall be required if (x) an Event of Default occurs with respect to the Borrower under Section 6.1(e) and (y) (A) with respect to such Swingline Lender, it has no outstanding Swingline Loans at that time or (B) with respect to such L/C Issuer, it has no outstanding Letters of Credit at that time. Subject to the foregoing clauses (b)(i) through (b)(iv), the Administrative Agent or their respective Affiliates) shall record such assignment and, from and after the effective date specified in such each Assignment and AcceptanceAssumption, (i) the assignee Eligible Assignee thereunder shall become be a party hereto to this Agreement and, to the extent that rights and obligations under of the Loan Documents have been interest assigned to such assignee pursuant to by such Assignment and AcceptanceAssumption, have the rights and obligations of a LenderBank under this Agreement, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor assigning Bank thereunder shall, to the extent that rights and obligations under this Agreement have been of the interest assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or of the remaining portion of an assigning LenderBank’s rights and obligations under the Loan Documentsthis Agreement, such Lender Bank shall cease to be a party heretohereto but shall continue to be entitled to the benefits of Sections 2.11, 2.14, and 8.4 with respect to facts and circumstances occurring while such Person was a Bank prior to the effective date of such assignment). Upon written request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Bank. Any assignment or transfer by a Bank of rights or obligations under this Agreement that does not comply with this subsection (b) shall be null and void.
(c) The Administrative Agent Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at its address referred to in Section 11.8 the Payment Office a copy of each Assignment and Acceptance Assumption delivered to and accepted or otherwise recorded by it and it. The Administrative Agent shall maintain a register for the recording recordation of the names and addresses of the Lenders Banks and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount amounts of the Revolving LoansAdvances and L/C Obligations owing to, Swing Loans and Letter of Credit Obligations (specifying each Bank pursuant to the Reimbursement Obligations) owing to each Lender and each Issuer terms hereof from time to time (the “Revolving Credit Facility Register” or the each, a “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposesconclusive, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, the Lenders Agent and the Issuers Banks shall treat each Person whose name is recorded in a Register pursuant to the Revolving Credit Facility Register terms hereof as a Lender or as an Issuer, as the case may be, Bank hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Revolving Credit Facility Each Register shall be available for inspection by the Borrower and the Facility Agents any Bank, at any reasonable time and from time to time upon reasonable prior notice.
(d) Any Bank may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Bank’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Advances (including such Bank’s participations in L/C Obligations) and stated interest owing to it); provided 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 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. No Revolving LoanAny agreement or instrument pursuant to which a Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce, Swing Loanand to participate in any related decision to enforce, Letter this Agreement and to approve any amendment, modification or waiver of Credit Obligationany provision of this Agreement; provided that such agreement or instrument may provide that such Bank will not, Reimbursement Obligationwithout the consent of the Participant, nor agree to any Assignment and Acceptance amendment, waiver or Assumption Agreementother modification described in clause (b), (c), or (d) of the first proviso to Section 8.1 that directly affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be effective unless entitled to the benefits of Sections 2.11, 2.14, and 8.4(b) if it is entered actually incurs any loss or expense pursuant to such sections, and then, solely to the same extent as if it were the Bank from which it had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.5(b) as though it were a Bank, provided such Participant agrees to be subject to Section 2.15 as though it were a Bank. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in due courseany commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) A Participant shall not be entitled to receive any greater payment under Section 2.6, Section 2.7, Section 2.11, Section 2.14 or Section 8.4(b) than the applicable Bank would have been entitled to receive with respect to the participation sold to such Participant, unless the Borrower shall expressly agree otherwise in writing. A Participant that would be a Foreign Bank if it were a Bank shall not be entitled to the benefits of Section 2.14 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 Sections 2.14, 2.15 and 8.18 as though it were a Bank.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Bank to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledgee or assignee for such Bank as a party hereto.
(g) As used herein, the following terms have the following meanings:
Appears in 1 contract
Assignments and Participations. (a) Each Neither Borrower may assign its rights or obligations hereunder or under the Notes or any Letter of Credit without the prior consent of all of the Lenders and the Administrative Agent.
(b) Any Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving Loans, the Swing Loans Commitment and the Letters of CreditLoans at the time owing to it); provided, however, that:
provided that (i) if except in the case of an assignment to a Lender or an Affiliate of a Lender, each of the Company and the Administrative Agent (and, in the case of an assignment of all or a portion of a Commitment or any Lender’s obligations in respect of its LC Exposure or Swingline Exposure, the Issuing Banks and the Swingline Lender) must give their prior written consent to such assignment (which consent shall not be unreasonably withheld), (ii) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage amount of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant Commitment of the assigning Lender subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignmentassignment is delivered to the Administrative Agent) shall in no event (if less than the Assignor’s entire interest) not be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent 10,000,000 unless each of the Borrower Company and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
otherwise consent, (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 each partial assignment shall be subject to made as an assignment of a proportionate part of all the prior consent of assigning Lender’s rights and obligations under this Agreement, (iv) the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500 for each such assignment, and (v) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; provided further that any consent of the Company otherwise required under this Section 10.05(b) shall not be required if an Event of Default has occurred and is continuing. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender pursuant to an Affiliate of such Lender or by any Agent or their respective Affiliates) Section 10.05(d), from and after the effective date specified in such each Assignment and Acceptance, (i) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under of the Loan Documents have been interest assigned to such assignee pursuant to by such Assignment and Acceptance, have the rights and obligations of a LenderLender under this Agreement, and if such the assigning Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been of the interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party heretohereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 10.03). Any assignment or transfer by a Lender 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 Lender of a participation in such rights and obligations in accordance with Section 10.05(e).
(c) The Administrative Agent Agent, acting for this purpose as an agent of the Borrowers, shall maintain at one of its address referred to offices in Section 11.8 Charlotte, North Carolina a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Lenders, and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) LC Disbursements owing to to, each Lender and each Issuer pursuant to the terms hereof from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.the
Appears in 1 contract
Sources: Credit Agreement (Kinder Morgan Energy Partners L P)
Assignments and Participations. (a) Each Lender may sellmay, transferin accordance with applicable law, negotiate or assign to one or more Eligible Assignees Lenders or other entities all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving LoansCommitment, the Swing Loans Advances owing to it and the Letters of CreditNotes held by it); provided, however, that:
provided that (i) if any each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement in respect of its Commitment and Advances (including the Letter of Credit Liabilities held by the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentLender pursuant to Section 2.19), such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) except in the aggregate case of an assignment of all of a Lender’s rights and obligations under this Agreement or an assignment to another Lender, the Commitment or the Dollar Equivalent amount of the Advances of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Transfer Agreement with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than $5,000,000 or and shall be in an integral multiple of $1,000,000 (or if the Advances being assigned are denominated in Euros, the smallest amount of Euros that has a Dollar Equivalent equal to or in excess thereofof $1,000,000), except (I) with the consent of the Borrower and the Administrative Agent or (II) 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, each such assignment shall be subject to an Eligible Assignee, and (iv) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance by the Administrative Agent and recording by the Administrative Agent in the Register Register, a Transfer Agreement, together with any Notes then held by such assigning Lender (as defined in clause (cto the extent such assigning Lender is assigning all of its rights and obligations under this Agreement) below), an Assignment and Acceptancea processing and recordation fee of $2,000 payable by the assignee. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such Assignment and Acceptanceeach Transfer Agreement, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and AcceptanceTransfer Agreement, have the rights and obligations of a LenderLender hereunder, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and AcceptanceTransfer Agreement, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance a Transfer Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto except that the rights under Sections 2.06, 2.10, 2.13 and 8.04 of such Lender shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a party hereto), and (z) unless Pride consents to such assignment, no such assignee shall be entitled to receive any greater payment pursuant to Sections 2.06, 2.10 and 2.13 than the assigning Lender would have been entitled to receive with respect to the rights assigned to such assignee, except as a result of circumstances arising after, and that could not reasonably be expected at, the date of such assignment.
(b) By executing and delivering a Transfer Agreement, 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 Transfer Agreement, and other than that the assignor is the legal and beneficial owner of the interest being assigned and that the assigned interest is free and clear of any adverse claim, 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 Credit Document or any other instrument or document furnished pursuant hereto or in connection herewith, the perfection, existence, sufficiency or value of any collateral, guaranty or insurance or the execution, legality, validity, enforceability, genuineness, sufficiency or value of any Credit Document or any other instrument or document furnished pursuant hereto or in connection herewith; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any other Person or the performance or observance by the Borrowers or any other Person of any of its respective obligations under any Credit 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(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Transfer Agreement; (iv) such assignee will, independently and without reliance upon the Administrative Agent, the Issuing Banks, 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, any of the other Credit 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 Credit 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 (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 11.8 8.02 a copy of each Assignment and Acceptance Transfer Agreement delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the Issuers, Commitment and the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) Advances owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrowers, the Administrative Agent, the Lenders Issuing Banks and the Issuers shall Lenders may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a Transfer Agreement executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Notes then held by such assigning Lender (to the extent such assigning Lender is assigning all of its rights and obligations under this Agreement), the Administrative Agent shall, if such Transfer Agreement has been completed and is in substantially the form of Exhibit F, (i) accept such Transfer Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Pride. No Revolving LoanWithin five Business Days after its receipt of such notice, Swing Loanif such Eligible Assignee is not a Lender immediately prior to the effectiveness of such Transfer Agreement and requests a Note, Letter an authorized officer of Credit Obligationeach Borrower shall execute and deliver to the Administrative Agent, Reimbursement Obligationor such Eligible Assignee, nor any Assignment and Acceptance or Assumption a Note executed by such Borrower in accordance with Section 2.02(f) (each such Note shall be dated the effective date of such Transfer Agreement, shall be effective properly completed and shall otherwise be in substantially the form of Exhibit A-1 or Exhibit A-2, as applicable).
(e) Each Lender, in accordance with applicable law, may sell participations to one or more Lenders or other entities (other than Pride 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 Notes held by it); provided that (i) such Lender’s obligations under this Agreement (including 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 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 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 terms of any such participation shall not restrict such Lender’s ability to make any amendment or waiver of any Credit Document or such Lender’s ability to consent to any departure by the Borrowers 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, (vi) unless Pride otherwise consents, no such participant shall be entitled to receive any greater payment pursuant to Sections 2.06, 2.10 and 2.13 than such Lender would have been entitled to receive with respect to the rights assigned to such participant by such Lender, and (vii) such Lender shall give prompt written notice of such participation to Pride and the Administrative Agent.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Advances owing to it is entered and the Notes held by it) in favor of any central bank or any Federal Reserve Bank in accordance with Regulation A of the Register in due courseFederal Reserve Board.
Appears in 1 contract
Sources: Revolving Credit Agreement (Pride International Inc)
Assignments and Participations. (a) Each Lender (x) may sellwith the consent of (1) the Agent (in the case of an assignment of a Revolving Credit Commitment to a Person other than a Revolving Lender, transferan Affiliate of a Revolving Lender or an Approved Fund with respect to a Revolving Lender or in the case of an assignment of a Term Loan or a Term Loan Commitment to a Person other than a Lender, negotiate an Affiliate of a Lender or an Approved Fund), (2) each 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, and other than with respect to (A) an assignment of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund or (B) an assignment of a Revolving Credit Commitment to an existing Revolving Lender or a Term Loan Commitment to an existing Revolving Lender or Term Lender, the Borrower (which consents shall not be unreasonably withheld or delayed 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 2.11, 2.14 or 2.20 or if such Lender is affected by an event described in Section 2.12 or is a Defaulting Lender) upon at least five Business Days’ notice to such Lender and the Agent, assign to one or more Eligible Assignees Persons all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its Revolving Credit Commitment, the Loans and Advances owing to it, its participations in Letters of Credit and the Note or Notes held by it) in accordance with Section 8.15; provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of its rights and obligations with respect under the relevant facility under this Agreement, (ii) except in the case of an assignment to the Revolving Loansa 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 Swing amount of the applicable Commitment (or, if the relevant Commitment has terminated, of the principal amount of the Loans and under the Letters of Credit); provided, however, that:
(iapplicable facility) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than (x) in the case of an assignment of Revolving Credit Commitment (or, if the Revolving Credit Commitments have terminated, Loans under the Revolving Credit Facility), $5,000,000 or (and shall be an integral multiple of $1,000,000 1,000,000), and (y) in excess thereofthe case of an assignment of an A-1 Term Loan Commitment (or, except if applicable, an A-1 Term Loan) or an A-2 Term Loan Commitment (I) with or, if applicable, an A-2 Term Loan), $1,000,000, in each case unless the consent of Agent and, if no Default has occurred and is continuing, the Borrower and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
otherwise agree, (iii) if each such assignment shall be to an Eligible Assignee is notand shall comply with Section 8.07(h), prior (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 assignmentprincipal amount and all other amounts payable to such Lender under this Agreement, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to (vi) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, 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 in the case of each assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by the Borrower except that no such recordation fee shall be payable in the case of an assignment made at the request of the Borrower to an Eligible Assignee that is an existing Lender, (vii) no consent of the 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 have any responsibility or liability for monitoring or enforcing any of the provisions set forth herein with respect to Competitors. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive other than its rights under Sections 2.11, 2.14 and 8.04 to the payment in full of the Obligationsextent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis 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: (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 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 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 Administrative Agent shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) Advances owing to to, each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive prima facie evidence of the correctness thereof and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents 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) (each, a “Participant”) in or to all or a portion of its rights and obligations under this Agreement (including 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 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) each Loan Party, the 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 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 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, in each case subject to clause (i) below. No Revolving LoanFor the avoidance of doubt, Swing Loaneach Lender shall be responsible for the indemnity under Section 7.05 without regard to the existence of any participation. Except as set forth above in this Section 8.07(e) and as set forth in Section 8.07(i), Letter 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 Credit Obligationany provision of this Agreement. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.11, Reimbursement Obligation2.14 and 2.20 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section (it being understood that the documentation required under Section 2.14 (e) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.11, nor 2.14 or 2.20 with respect to any participation, than the Lender from whom it acquired the applicable participation 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. 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 2.15 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no 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 Agent (in its capacity as 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 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 create a security interest in all or any portion of its rights under this Agreement (including the Loans owing to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board.
(h) Notwithstanding the foregoing provisions of this Section 8.07 or any other provision of this Agreement, (i) no Lender shall assign or sell a participation in any of its rights or obligations hereunder unless the proposed assignee or participant represents and warrants in the applicable Assignment and Acceptance or Assumption 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 be effective unless it is entered have no rights under Section 5.01(e); and (C) in the Register in due course.case of 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
Appears in 1 contract
Assignments and Participations. (a) Each Lender may sellmay, transferwith notice to and the consent of the Administrative Agent and the Issuing Banks and, negotiate or unless an Event of Default shall have occurred and be continuing, the Borrower (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) Business Days after having received notice thereof) (such consents not to be unreasonably withheld), assign to one or more Eligible Assignees banks or other entities all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCredit Commitment, the Swing Loans Advances owing to it and the its participations in Letters of Credit); provided, however, provided that:
(i) if any each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;Lender under this Agreement,
(ii) except in the aggregate case of an assignment by a Lender to one of its Affiliates or to another Lender, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than unless the Assignor’s entire interestBorrower and the Administrative Agent otherwise agree) be less than the lesser of (x) such Lender’s Revolving Credit Commitment hereunder and (y) $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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, each such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.an Eligible Assignee,
(biv) The the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, and
(v) the parties to each such assignment (other than the Borrower) shall deliver to the Administrative Agent a processing and recordation fee of $3,500. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date Closing Date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis 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: (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 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 of the obligations which 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 the Borrower and the Administrative Agent shall have consented to the relevant assignment) 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 Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of each of the Lenders and the Issuersand, with respect to Lenders, the Revolving Credit Commitments of Commitment of, and principal amount (and stated interest) of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each such Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as hereunder for the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No .
(e) Each Lender may sell participations to one or more Persons (other than any Ineligible Institution) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving LoanCredit Commitment and the Advances owing to it); provided, Swing Loanhowever, Letter that (i) such Lender’s obligations under this Agreement (including, without limitation, its Revolving Credit Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of Credit Obligationsuch obligations, Reimbursement Obligation(iii) the Borrower, nor any Assignment the Administrative Agent and Acceptance or Assumption 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) in any proceeding under the Federal Bankruptcy Code in respect of the Borrower, such Lender shall remain and be, to the fullest extent permitted by law, the sole representative with respect to the rights and obligations held in the name of such Lender (whether such rights or obligations are for such Lender’s own account or for the account of any participant), (v) no participant under any such participation agreement shall have any right to approve any amendment or waiver of any provision of this Agreement, or to consent to any departure by the Borrower therefrom, except to the extent that any such amendment, waiver or consent would (x) reduce the principal of, or interest on, the Notes, in each case to the extent the same are subject to such participation, or (y) postpone any date fixed for the payment of principal of, or interest on, the Advances, in each case to the extent the same are subject to such participation and (vi) each participant shall be effective entitled to the benefits of, and subject to the limitations of, Sections 2.12 and 2.15 to the same extent as if it were a Lender and had acquired its interest by assignment, provided that (A) such participant agrees to be subject to the provisions of Section 2.15(g) and Section 2.17 as if it were an assignee under paragraph (b) of this Section and (B) no participant shall be entitled to the benefits of Section 2.15 unless such participant complies with Section 2.15(e) as if it is entered were a Lender (it being understood that the documentation required thereunder shall be delivered to the participating Lender). Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.15(g) with respect to any 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 obligations under this Agreement (the “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 due coursethe obligations under this Agreement) except to the extent that such disclosure is necessary to establish that such interest is in registered form under United States Treasury Regulations Section 5f.103-1(c) and Proposed Treasury Regulations 1.163-5(b) (or any amended or successor version). 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.
(f) Any Lender may, in connection with any permitted assignment or participation or proposed assignment or participation pursuant to this Section 8.06 and subject to the provisions of Section 8.12, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower or any of its Subsidiaries or Affiliates furnished to such Lender by or on behalf of the Borrower.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, without the consent of the Administrative Agent or the Borrower, create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Board.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, without the consent of the Administrative Agent or the Borrower (but with notice to the Administrative Agent and the Borrower), assign to an Affiliate of such Lender all or any portion of its rights (but not its obligations) under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Coca Cola Bottling Co Consolidated /De/)
Assignments and Participations. (a) Each Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings aggregate outstanding principal amount of Loans and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings aggregate outstanding principal amount of Loans and Revolving Credit Commitment;
, (ii) the aggregate amount 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 (if less than the Assignorassigning Lender’s entire interest) be less than $5,000,000 (which may be aggregated among Affiliates of a Lender) or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower and the Administrative Agent Requisite Lenders or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
, 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 the prior consent of the Administrative Agent, each Issuer Lender and the Borrower (which consents consent shall not be unreasonably withheld withheld, delayed or delayedconditioned); and provided, furtherhowever, that, notwithstanding any other provision of this Section 11.213.2, the consent of the Borrower shall not be required for any assignment occurring when that occurs after any Event of Default shall have occurred and be continuingoccurred.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and Acceptance, together with any Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 13.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and Borrower, the Facility Agents Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreementexecuted by an assigning Lender and an assignee, shall be effective unless it is entered 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 the Borrower. Within five (5) Business Days after its receipt of such notice, the Borrower, at its own expense, shall, if requested by such assignee, execute and deliver to the Administrative Agent, new Notes to the order of such assignee in due coursean amount equal to the Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Note for exchange in connection with the assignment and has retained Commitments hereunder, new Notes to the order of the assigning Lender in an amount equal to the Commitments retained by it hereunder. Such new Notes shall be dated the same date as the surrendered Notes and be in substantially the form of Exhibit I hereto, as applicable.
(e) In addition to the other assignment rights provided in this Section 13.2, each Lender may assign, as collateral or otherwise, any of its rights under this Agreement (including rights to payments of principal or interest on the Loans) to (i) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrower or the Administrative Agent and (ii) any trustee for the benefit of the holders of such Lender’s Securities; provided, however, that no such assignment shall release the assigning Lender from any of its obligations hereunder.
(f) 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 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 any Loan Party therefrom, or to the exercising or refraining from exercising any powers or rights which such Lender may have under or in respect of the Loan Documents (including the right to enforce the obligations of the Loan Parties), except if any such amendment, waiver or other modification or consent would require the consent of each Lender in accordance with Section 13.1(a) hereof. In the event of the sale of any participation by any Lender, (A) such Lender’s obligations under the Loan Documents shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties for the performance of such obligations, (C) such Lender shall remain the holder of such Obligations for all purposes of this Agreement, and (D) 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. Each participant shall be entitled to the benefits of Sections 2.14(c), 2.14(d), 2.14(e), 2.15 and 2.16 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 pay to any participant of any interest of any Lender, under Section 2.14(c), 2.14(d), 2.14(e), 2.15 or 2.16, any sum in excess of the sum which the Borrower would have been obligated to pay to such Lender in respect of such interest had such participation not been sold.
Appears in 1 contract
Sources: Secured Super Priority Debtor in Possession Multiple Draw Term Loan Agreement (Pliant Corp)
Assignments and Participations. (a) Each Lender Bank may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to interest in the Revolving LoansLoan, the Swing Loans its Note, and the Letters of Creditits Commitment); provided, however, that:
(i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitmentto an Eligible Assignee;
(ii) except in the aggregate case of an assignment to another Bank or an assignment of all of a Bank's rights and obligations under this Agreement, any such partial assignment shall be in an amount being assigned pursuant at least equal to each such assignment (determined as of the date of the Assignment and 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 an integral multiple of $1,000,000 100,000 in excess thereof, except ;
(Iiii) with the consent of the Borrower and the Administrative Agent or (II) if each such assignment is being made to by a Lender or an Affiliate or Approved Fund Bank shall be of such Lendera constant, and not varying, percentage of all of its rights and obligations under this Agreement and its Note; and
(iiiiv) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and AcceptanceAcceptance Agreement (herein so called) in the form of Exhibit J hereto, together with any Note subject to such assignment and a processing fee of $3,500. Upon such execution, delivery, and acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and AcceptanceAcceptance Agreement, (i) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to of such assignee pursuant to such Assignment and Acceptanceassignment, have the rights obligations, rights, and obligations benefits of a Lender, and if such Lender were an Issuer, of such Issuer Bank hereunder and thereunder, and (ii) the assignor thereunder assigning Bank shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under this Agreement. Upon the Loan Documentsconsummation of any assignment pursuant to this Section 14.10(a), other than those relating the assignor, Administrative Agent and Borrower shall make appropriate arrangements so that, if required, new Notes are issued to events or circumstances occurring prior to such assignment (and, in the case of an Assignment assignor and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations assignee. If the assignee is not incorporated under the Loan DocumentsLaws of the United States of America or a state thereof, such Lender it shall cease deliver to be a party heretoBorrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with Section 4.6(d).
(cb) The Administrative Agent shall maintain at its address referred to in Section 11.8 set forth on Schedule 1 hereto, a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Banks and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansLoan owing to, Swing Loans each Bank and Letter the Commitment Percentage of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer Bank from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, the Lenders Agent and the Issuers shall Banks may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, Bank hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Bank at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(c) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreement executed by the parties thereto, together with any Note subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed and is in substantially the form of Exhibit J hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(d) Each Bank may sell participations to one or more Persons in all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and its interest in the Revolving Loan); 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) the participant shall be effective unless it is entered entitled to the benefit of the yield protection provisions contained in Article 4 and the right of set-off contained in Section 14.4, and (iv) Borrower shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and such Bank shall retain the sole right to enforce the obligations of Borrower relating to its interest in the Register Revolving Loan and its Note and to approve any amendment, modification, or waiver of any provision of this Agreement (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is payable on the Revolving Loan or Note, extending any scheduled principal payment date or date fixed for the payment of interest on the Revolving Loan or Note, or extending its Commitment).
(e) Notwithstanding any other provision set forth in due coursethis Agreement, any Bank may at any time assign and pledge all or any portion of its interest in the Revolving Loan and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
(f) Any Bank may furnish any information concerning Borrower or any of its Subsidiaries in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants).
(g) Borrower shall not assign or transfer any rights or obligations under any Loan Paper or permit any Credit Party to assign or transfer any rights or obligations under any Loan Paper without first obtaining all Banks' consent, and any purported assignment or transfer without all Bank's consent is void.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCommitment, the Swing Loans Advance owing to it and the Letters of CreditNote held by it); provided, however, that:
that (i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a uniform, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings all rights and Revolving Credit Commitment;
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 aggregate amount of the Commitment and Advance 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereofU.S.$2,000,000, except (Iiii) with unless the consent of the Borrower and the Administrative Agent or (II) if such assignment is being made to a an existing Lender or an Affiliate or Approved Fund of the assigning Lender, the Borrower shall have notified the assigning Lender within five Business Days of the Borrower's receipt of notice of such Lender; and
(iii) if such Eligible Assignee is not, prior to assignment of the date Borrower's approval of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, assignment (such assignment shall be subject approval not to the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents shall not be unreasonably withheld or delayed); ) and providedif the Borrower has not notified the assigning Lender of its approval or disapproval of such assignment by such date, further, that, notwithstanding any other provision of this Section 11.2, the consent of the Borrower shall not be required for deemed to have given its approval, (iv) any assignment occurring when at any Event date prior to the date 60 days after the Restatement Effective Date shall be made on the last day of Default shall have occurred an Interest Period, and be continuing.
(bv) The the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance (such acceptance not to be withheld if the conditions set forth above in this Section 9.07 are satisfied) and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Note subject to such assignment and a processing and recordation fee of U.S.$3,000. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis 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: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, 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, the Guarantor or any of their respective Subsidiaries or with respect to the performance or observance by the Borrower, the Guarantor or any of their respective Subsidiaries of any of their obligations under this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (iii) such assignee confirms that it has received a copy of this Agreement and each other Loan Document, together with copies of the financial statements referred to in Section 4.02(g) 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; and (vii) such assignee agrees to be bound by the terms of this Agreement.
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) Advance owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Guarantor, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and Borrower, the Facility Agents Guarantor or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance executed by an assigning Lender and an 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 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 (but only if the Borrower has approved the assignment in accordance with Section 9.07(a)), at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note a new Note payable to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it or Assumption Agreementthe Advance assigned to it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment or a portion of its Advance hereunder, a new Note payable to the order of the assigning Lender in an amount equal to the Commitment or Advance 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 effective unless date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
(e) 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 Advance owing to it is entered and the Note held by it) to any Eligible Assignee; provided, however that (i) such Lender's obligations under this Agreement (including, without limitation, each 2001 Lenders' 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 Guarantor, 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) 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 the Register 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 due courseeach case to the extent subject to such participation, postpone the Maturity Date or any date fixed for any payment of interest on the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advance owing to it and the Note held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more other Lenders or Eligible Assignees all or a portion of its rights Commitment, including, without limitation, in the case of an Issuer, its commitment to issue Letters of Credit and, in the case of each Lender, to participate in Letter of Credit Obligations and obligations hereunder (including all Swing Loans, the Loans and Letter of Credit Obligations owing to it and the Revolving Credit Note held by it, if any, and a commensurate portion of its rights and obligations with respect to hereunder and under the Revolving Loansother Loan Documents; PROVIDED, the Swing Loans and the Letters of Credit); providedHOWEVER, however, that:
that (i) if any each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s Revolving Credit Outstandings 's rights and Revolving Credit Commitmentobligations under this Agreement and the other Loan Documents, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount of the Commitments, Letters of Credit, Letter of Credit Obligations and Loans 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 (if less than the Assignor’s 's entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) except, in either case, with the consent of the Borrower and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
Agent, and (iii) if such each assignee hereunder shall also be an 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) Assignee. The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in recording, together with a $3,500 fee payable to the Register (as defined in clause (c) below)Agent for processing such assignment, an Assignment and Acceptance, together with the Revolving Credit Notes (or an Affidavit of Loss and Indemnity with respect to such Revolving Credit Notes satisfactory to the Agent), if any, subject to such assignment. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such Assignment and Acceptance, (iA) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were was an Issuer, of such an Issuer hereunder and thereunder, thereunder and (iiB) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which that survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment Documents (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 of the statements, warranties or representations made in or in connection with this Agreement or any other Loan Document furnished pursuant thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, 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 any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (iii) such assigning Lender confirms that it has delivered to the assignee copies of the Loan Documents and the assignee confirms that it has received such copies, together with a copy of the most recent financial statements delivered by the Borrower to the Lenders pursuant to each of the clauses of SECTION 6.10 (or if no such statements have been delivered, the financial statements referred to in SECTION 4.5 of this Agreement) 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, any Issuer 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 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 this Agreement are required to be performed by it as a Lender and if such assignor Lender was an Issuer, as an Issuer.
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 SECTION 10.2 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitments of, the Revolving commitments to issue Letters of Credit, Letter of Credit Commitments of Obligations owing to, and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”"REGISTER"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders Issuers and the Issuers shall Lenders may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and Borrower, the Facility Agents Agent, any Issuer 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 the Revolving Credit Notes subject to such assignment, if any, the 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 the Borrower. No If requested by such assignee, 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 such surrendered Revolving LoanCredit Notes, Swing Loannew Revolving Credit Notes to the order of such Eligible Assignee in an amount equal to the Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained Commitments hereunder, and if any are requested, new Revolving Credit Notes to the order of the assigning Lender in an amount equal to the Commitments retained by it hereunder. Such new Revolving Credit Notes, if any are requested, shall be dated the same date as the surrendered Revolving Credit Notes, if any, and be in substantially the form of EXHIBIT A.
(e) In addition to the other assignment rights provided in this SECTION 10.7, each Lender may assign, as collateral or otherwise, any of its rights under this Agreement (including, without limitation, rights to payments of principal or interest on the Revolving Credit Notes, if any) to any Federal Reserve Bank without notice to or consent of the Borrower or the Agent; PROVIDED, HOWEVER, that no such assignment shall release the assigning Lender from any of its obligations hereunder. The terms and conditions of any such assignment and the documentation evidencing such assignment shall be in form and substance satisfactory to the assigning Lender and the assignee Federal Reserve Bank.
(f) Each Lender may sell participations to one or more banks or other Persons 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 Letter of Credit ObligationObligations owing to it, Reimbursement Obligationthe Loans owing to it and the Revolving Credit Notes held by it, nor if any). The terms of such participation shall not, in any Assignment 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 any Loan Party therefrom, or to the exercising or refraining from exercising any powers or rights which such Lender may have under or in respect of the Loan Documents (including, without limitation, the right to enforce the obligations of the Loan Parties), except if any such amendment, waiver or other modification or consent would (i) 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 (ii) result in the release of all or substantially all of the Collateral other than in accordance with the Loan Documents. In the event of the sale of any participation by any Lender, (i) such Lender's obligations under the Loan Documents (including, without limitation, its Commitment and Acceptance its commitment hereunder to issue Letters of Credit, 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 such Revolving Credit Notes, if any, and Obligations for all purposes of this Agreement and (iv) the Borrower, the Agent, the Issuers 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.
(g) Each Issuer may at any time assign its rights and obligations hereunder to any other Issuer or Assumption Agreement, to any Lender by an instrument in form and substance satisfactory to the Agent and the relevant parties thereto.
(h) Each participant shall be effective unless entitled to the benefits of SECTIONS 2.10, 2.12 and 2.14 as if it is entered were a Lender; PROVIDED, HOWEVER, that anything herein to the contrary notwithstanding, the Borrower shall not, at any time, be obligated to pay to any participant of any interest of any Lender, any sum under SECTION 2.10, 2.12 or 2.14 in excess of the Register sum that the Borrower would at the time of such participation have been obligated to pay to such Lender in due courserespect of such interest had such participation not been effected or had such participation not been sold.
Appears in 1 contract
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees and delegate all or a any portion of its rights and obligations hereunder duties under the Loan Documents (including all of the Obligations owed to it and its rights and obligations Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with respect to the Revolving Loans, the Swing Loans and the Letters of Credit)prior written consent (such consent not be unreasonably withheld or delayed) of:
(A) Borrower; provided, howeverthat no consent of Borrower shall be required (1) if an Event of Default has occurred and is continuing, that:or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender (other than any Defaulting Lender or its Affiliates); provided further, that Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(iB) if any such assignment shall be of the assigning Agent, Swing Loan Lender’s Revolving Credit Outstandings , and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;Issuing Bank.
(ii) Assignments shall be subject to the aggregate following additional conditions:
(A) no assignment may be made to an Ineligible Institution, a Competitor or to a natural person; provided, that Assignments may be made to any Competitor so long as a Specified Event of Default has occurred and is continuing for 30 consecutive days,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party other than to Sponsor Affiliated Entities; provided, that any such Sponsor Affiliated Entity that is or becomes a Lender hereunder shall be subject to the provisions of Section 13.1(k) hereof,
(C) the amount being assigned pursuant of the Commitments and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignmentassignment is delivered to Agent) shall be in no event a minimum amount (if less than the Assignor’s entire interestunless waived by Agent) be less than of $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (except such minimum amount shall not apply to (I) with the consent an assignment or delegation by any Lender to any other Lender, an Affiliate of the Borrower and the Administrative Agent any Lender, or a Related Fund of such Lender or (II) if such assignment a group of new Lenders, each of which is being made to a Lender or an Affiliate of each other or Approved a Related Fund of such Lender; andnew Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(iiiD) 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 each partial assignment shall be subject to made as an assignment of a proportionate part of all the prior consent of the Administrative Agent, each Issuer assigning Lender’s rights and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of obligations under 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.Agreement,
(bE) The the parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Agent an Assignment and Acceptance. Upon ; provided, that Borrower and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such executionassignment, deliverytogether with payment instructions, acceptance addresses, and recording in related information with respect to the Register Assignee, have been given to Borrower and Agent by such Lender and the receipt Assignee,
(F) unless waived by Agent, the Administrative Agent from the assignee of an assignment assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing fee in the amount of $3,500 3,500, and
(other than G) the assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates“Administrative Questionnaire”).
(b) from From and after the effective date specified in such that Agent receives the executed Assignment and AcceptanceAcceptance and, if applicable, payment of the required processing fee, (i) the assignee Assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunderunder the Loan Documents, and (ii) the assignor thereunder assigning Lender shall, to the extent that rights and obligations hereunder and under this Agreement the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligationswith respect to Section 10.3) and be released from its any future obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party heretohereto and thereto); provided, 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 15 and Section 17.9(a).
(c) The Administrative Agent shall maintain at its address referred By executing and delivering an Assignment and Acceptance, the assigning Lender 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 Section 11.8 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 Loan 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 Loan Parties or the performance or observance by the Loan Parties of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of each this Agreement, together with 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 delivered 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 accepted authorizes Agent to take such actions 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 all of the obligations which by the terms of this Agreement are required to be performed by it and as a register for the recording Lender.
(d) Immediately upon Agent’s receipt of the names required processing fee, if applicable, and addresses delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Lenders Assignee and the Issuers, resulting adjustment of the Revolving Credit Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons not constituting Competitors (except to the extent such assignment would be permitted hereunder) (a “Participant”) participating interests in all or any portion of its Obligations, its Commitment, and principal amount the other rights and interests of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each that Lender and each Issuer from time to time (the “Revolving Credit Facility RegisterOriginating Lender”) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a “Lender” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not 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) Borrower, 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 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 Collateral or guaranties (except to the extent expressly provided herein or in any 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 such Participant through such Lender (other than a waiver of default interest), or (E) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party other than to Sponsor Affiliated Entities; provided, that any such Person that is or becomes a Participant hereunder shall be subject to the provisions of Section 13.1(k) hereof as if it were an assignee rather than a participant, and (vii) all amounts payable by 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 Revolving Credit Facility Register rights of any Participant only shall be available for inspection 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, Agent, Borrower, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due courseLenders among themselves.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees banks or other entities all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCommitments, the Swing Loans owing to it and the Letters of CreditNote or Notes held by it); provided, however, that:
: (i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a constant, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings all rights and Revolving Credit Commitment;
obligations under this Agreement, (ii) the aggregate 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 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 10,000,000 and shall be an integral multiple of $1,000,000 in excess thereof, except TERM LOAN AGREEMENT FMC CORPORATION 74 WEIL:\98220939\8\35899.0612 (Iiii) with 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 consent 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 Borrower and the Administrative Agent or (II) if shall have consented to 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents shall not be unreasonably withheld or delayed); provided that no consent of the Borrower shall be required if an Event of Default under Section 7.01(a) or (e) has occurred and provided, is continuing; provided further, that, notwithstanding any other provision of this Section 11.2, that the consent of the Borrower shall not be required for deemed to have been received with respect to any such proposed assignment occurring when any Event unless the Borrower has notified the Administrative Agent in writing of Default shall have occurred its objection thereto within 10 Business Days of the Borrower’s receipt of written notice thereof, and be continuing.
(biv) The the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, 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 assignee; provided that the Administrative Agent may, in its sole discretion, elect to waive such recordation fee in the case of any such assignment. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shallshall relinquish its rights and be released from its obligations under this Agreement, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance. Notwithstanding anything to the contrary contained herein except for the conditions set for in clause (iv) of this Section 9.07(a), relinquish its rights any Lender (except those a “Granting Lender”) may grant to a special purpose funding vehicle (a “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 a Loan 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 Loan 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 Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan 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 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 Obligationslaws 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 be released from the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the
(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 Loan Documents, financial statements referred to in Section 5.03 and such other than those relating documents and information as it has deemed appropriate to events or circumstances occurring prior make its own credit analysis and decision to enter into such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights Acceptance; (iv) such assignee will, independently and obligations under the Loan Documentswithout reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall cease 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 party hereto)Lender.
(c) [Intentionally Deleted].
(d) The Administrative Agent Agent, acting solely for this purpose as a non- fiduciary agent of the Borrower, shall maintain at its address referred to in Section 11.8 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount and interest amounts of the Revolving LoansLoans owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter The Administrative Agent shall provide the Borrower with a copy of Credit Obligation, Reimbursement Obligation, nor any the 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 Assumption 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
(f) Each Lender may, without the consent of, or notice to, the Borrower, the Administrative Agent or any other Person, 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) the Borrower or any Affiliates of the Borrower or (z) any Defaulting Lender) in or to a portion of 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 Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) 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), the parties to each such participation shall execute a participation 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 upon request. Notwithstanding anything in this paragraph to the contrary, any bank that is a member of the Farm Credit System that (a) has purchased a participation of at least $10,000,000 on or after the Effective Date, (b) is, by written notice to the Borrower and the Administrative Agent (“Voting Participant Notification”), designated by the selling Lender as being entitled to be accorded the rights of a Voting Participant hereunder (any bank that is a member of the Farm Credit System so designated being called a “Voting Participant”) and (c) receives the prior written consent of the Borrower and the Administrative Agent to become a Voting Participant, shall be effective unless entitled to vote (and the voting rights of the selling Lender shall be correspondingly reduced), on a dollar-for-dollar basis, as if such participant were a Lender, on any matter requiring or allowing a Lender to provide or withhold its consent, or to otherwise vote on any proposed action. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (i) state the full name, as well as all contact information required of an assignee as set forth in Exhibit C-1 hereto and (ii) state the dollar amount of the participation purchased. The Borrower and the Administrative Agent shall be
9.05 as though it is entered were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. 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 and interest amounts of each participant’s interest in the Loans or other obligations hereunder (the “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 due courseany Loan or other obligation hereunder) except to the extent that such disclosure is necessary to establish that such Loan or other obligation is in registered form under ▇▇▇▇▇▇▇ ▇▇.▇▇▇−▇(▇) ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Treasury Regulations. The entries in the Participant Register shall be conclusive and binding for all purposes, 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.
Appears in 1 contract
Sources: Term Loan Agreement (FMC Corp)
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign either in whole or in part to one or more Eligible Assignees all or a portion of Lenders its rights and obligations hereunder and under the Notes and the other Loan Documents without the prior consent of the Borrower but, except as otherwise provided in SECTION 10.2(D), with the consent, not to be unreasonably withheld, of the Agent, and the prior written approval of the Board (including all such consent, in the case of its rights and obligations with respect an assignment to an Affiliate of any Lender that is an Eligible Lender, not to be unreasonably withheld); provided, that (i) the assigning Lender shall give prompt written notice to the Revolving Loans, the Swing Loans Agent and the Letters Board of Creditthe terms of and the parties to any such assignment, (ii) the proposed assignee shall provide to the Agent and the Board all documentation and certificates as required by the Agent and the Board to confirm to the Agent's and the Board's satisfaction that such proposed assignee is an Eligible Lender, and (iii) the Borrower will not be obligated to pay any greater amount under SECTION 2.10(C), SECTION 2.11 or SECTION 2.12(A), (c), or (d) (in respect of increased costs, amounts in respect of capital adequacy or Taxes imposed pursuant to applicable law in effect on the date of such assignment) to the assignee than the Borrower is then obligated to pay to the assigning Lender under such Sections; provided, however, that:
(i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with that the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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 Board shall not be required for any assignment occurring when any Event of Default which occurs after the Board has been reimbursed in full for all payments under the Board Guarantee or the Board Guarantee shall have occurred and be continuingterminated.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and Acceptance, and the assignee, if a Non-U.S. Person, shall deliver to the Borrower, the Agent and each Supplemental Guarantor, as applicable, on or prior to the date of the assignment, two completed copies of either IRS Form W-8BEN or W-8ECI or other applicable form, certificate or document required to satisfy the requirements of SECTION 2.12. Upon such execution, delivery, delivery and acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in 5,000, the case of an assignment by a Lender to an Affiliate of Agent shall record such Lender or by any Agent or their respective Affiliates) Assignment and Acceptance and from and after the effective date specified in such Assignment and Acceptance, Acceptance (i) the assignee thereunder of all or any portion of the Loan shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at Upon its address referred to in Section 11.8 a copy receipt of each an Assignment and Acceptance delivered executed by an assigning Lender and an assignee, the 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, (iii) give prompt notice thereof to the Borrower and accepted (iv) give prompt written notice of the terms of and parties to any such assignment to the Board.
(d) In addition to the other assignment rights provided in this SECTION 10.2, each Lender may assign, without the prior consent of the Borrower, the Agent or the Board, as collateral or otherwise, any of its rights under this Agreement to any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board, provided, however, that no such assignment shall release the assigning Lender from any of its obligations hereunder.
(e) Each Lender may, without the prior consent of the Borrower or any other Person, sell participations, to the extent permitted by the Regulations and except as provided in Section 5.4(b) of the Board Guarantee, in or to all or a portion of its rights and obligations hereunder and under any Note and the other Loan Documents; provided, that (i) neither any Note nor the Board Guarantee is assigned, conveyed, sold or transferred in whole or in part in connection with any participation, (ii) the Board's ability to assert any and all defenses available to it under the Board Guarantee and a register the law is not adversely affected, (iii) subject to the final sentence of this SECTION 10.2 the Borrower will not be obligated to pay any greater amount under SECTION 2.10(C), 2.11 or SECTION 2.12(A), (c) or (d) to such participant than the Borrower would then obligated to pay to any selling Lender under such Sections had such participation not been sold, and (iv) the initial Lenders shall maintain and shall not sell any participation in Tranche C of the Loan. In the event of the sale of any participation by any Lender, except as otherwise expressly provided herein, (A) such Lender's obligations under the Loan Documents shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties for the recording performance of such obligations, (C) such Lender shall remain the names and addresses holder of the Lenders and the Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit such Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement and (D) the Agent, the Board 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. The Revolving Credit Facility Register Any holder of such a participation will be entitled to the benefits of Sections 2.10(c), 2.11 and 2.12 to the same extent as if such Person were a Lender (but subject to the restrictions of SECTION 2.12(J)); provided that, no such holder shall be available entitled to any such benefits (x) unless such holder shall have agreed in writing for inspection the benefit of the Borrower to be bound by the provisions of Section 2.10(c), 2.11 and 2.12 applicable to a Lender claiming amounts under such Sections or (y) to the extent the Borrower and would not have had to have paid thereunder had such participation not been sold.
(f) The Company shall not be responsible for the Facility Agents at costs incurred by any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor Lender in connection with assigning or granting a participation in any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due courseNote held by such Lender.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees Persons all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights and obligations with respect to Commitment, the Revolving Loans, the Swing Loans Credit Advances owing to it and the Letters of CreditNote or Notes held by it); provided, however, that:
that (i) if any such Lender shall have obtained the prior written consent of the Administrative Agent, not to be unreasonably withheld or delayed, (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 (x) an assignment to a Person that, immediately prior to such assignment, was a Lender, (y) assignment to the Approved Fund of the assigning Lender or (z) an assignment of all of a Lender’s Revolving Credit Outstandings rights and Revolving Credit Commitmentobligations under this Agreement, such assignment shall cover the same percentage amount of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or 1,000,000 and shall be an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and unless the Administrative Agent or (II) otherwise agrees, and if such assignment the assigning Lender is being made assigning less than all of its Commitments after giving effect 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 the amount of the commitment of the assigning Lender shall be equal to or an Affiliate or Approved Fund of a Lendergreater than $1,000,000, (iv) each such assignment shall be subject to an Eligible Assignee and (v) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall (A) electronically execute and deliver to the Administrative AgentAgent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent (which initially shall be ClearPar, LLC) or (B) manually execute and deliver to the Administrative Agent an Assignment and Acceptance together with a processing and recordation fee of $3,500 (such fee payable by the assignor or assignee, as agreed by the parties), for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and AcceptanceRegister. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive other than its rights under Section 2.12, 2.15 and 8.04 to the payment in full of the Obligationsextent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis 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: (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 (A) any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document, (B) the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document or any collateral thereunder, (C) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of this Agreement or any other Loan Document or (D) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under this Agreement or any other Loan Document; (ii) such assignee (A) represents and warrants that (1) it satisfies the requirements, if any, specified in this Agreement that are required to be satisfied by it in order to acquire the Assigned Interest (as defined in such Assignment and Acceptance) and become a Lender, (2) from and after the Effective Date (specified in such Assignment and Acceptance), it shall be bound by the provisions of this Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (3) 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 5.01, 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 and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent, the assigning Lender or any other Lender and (4) it is an Eligible Assignee; and (B) agrees that (1) it will, independently and without reliance on the Administrative Agent, the 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, and (2) 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.
(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 D hereto, (i) accept such Assignment and Acceptance, and (ii) record the information contained therein in the Register.
(d) The Administrative Agent shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of each of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansCredit Advances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No .
(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 all or a portion of its Commitment, the Revolving LoanCredit Advances owing to it and any Notes held by it); provided, Swing Loanhowever, Letter 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 Credit Obligationsuch obligations, Reimbursement Obligation, nor (iii) such Lender shall remain the holder of any Assignment and Acceptance or Assumption 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) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement, any Note or any other Loan Document, 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, 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 relating to the Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, (i) any Lender may at any time grant a security interest (or any other similar interest) in all or any portion of its rights under this Agreement (including the Revolving Credit Advances owing to it and any Note or Notes held by it) to any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System and (ii) any Lender that is a fund may grant a security interest in all or any portion of its rights under this Agreement to any lender or any trustee for, or any other representative of, holders of obligations owed or securities issued by such fund as security for such obligations or securities or any institutional custodian for such fund or for such lender; provided that, in each case, no such assignment or grant of security interest shall release the assigning Lender from its obligations and duties hereunder.
(h) Notwithstanding anything to the contrary contained herein, any Lender (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 Revolving Credit Advance that such Granting Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided, however, that (i) nothing herein shall constitute a commitment by any SPC to make any Revolving Credit Advance, (ii) if a SPC elects not to exercise such option or otherwise fails to provide all or any part of such Revolving Credit Advance, the Granting Bank shall be obligated to make such Revolving Credit Advance pursuant to the terms hereof. The making of a Revolving Credit Advance by a SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Revolving Credit 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 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, any SPC may (i) with notice to, but without the prior written consent of the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Revolving Credit Advances to the Granting Bank or to any financial institutions (consented to by the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Revolving Credit Advances and (ii) disclose on a confidential basis any non-public information relating to its Revolving Credit 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 SPC.
(i) Notwithstanding any other provision set forth in this Agreement, each Lender, on behalf of itself and its Approved Funds, effective unless on and as of the date on which it is entered becomes a Lender either as a result of executing this Agreement or pursuant to this Section 8.07, hereby releases and forever discharges the Borrower and Credit Suisse First Boston (in its individual capacity and as Administrative Agent under the Register Existing Credit Agreement), and their respective directors, officers, employees, attorneys, agents and affiliates from any and all claims, actions, causes of action, demands, obligations, and liabilities of every nature and reason in due courseany way arising out of or in connection with the Existing Credit Agreement (including, without limitation, any claims, actions, causes of action, demands, obligations, or liabilities arising out of, or in any way connected with, Section 2.7 or 9.1 of the Existing Credit Agreement). Each such Lender further represents and warrants to the Borrower and Credit Suisse First Boston that any Approved Fund of such Lender, if any, which was a party to the Existing Credit Agreement has executed and delivered to the Borrower a written release consistent with the terms of the immediately preceding sentence.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may selland, transferif demanded by the Borrower (following a demand by such Lender pursuant to Section 2.11 or 2.14 or a suspension of Eurodollar Rate Advances pursuant to Section 2.12 and only if no Event of Default has occurred and is continuing) upon at least five Business Days' notice to such Lender and the Agent, negotiate or will assign to one or more Eligible Assignees Persons all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCredit Commitment, its undrawn Letter of Credit Commitment, the Swing Loans Advances owing to it, its participations in Letters of Credit and the Letters of CreditNote or Notes held by it); provided, however, that:
that (i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a constant, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings all rights and Revolving Credit Commitment;
obligations under and in respect of one or more of the Facilities, (ii) except in the aggregate 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 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereofthereof and (y) the undrawn Letter of Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the applicable Assignment and Acceptance) shall in no event be less than $1,000,000, except (I) with the consent of unless, in each case, the Borrower and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
otherwise agree, (iii) if each such assignment shall be to an Eligible Assignee is notAssignee, prior (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 assignmentprincipal amount and all other amounts payable to such Lender under this Agreement, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to and (vi) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, 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 no such recordation fee shall be payable in the case of an assignment made at the request of the Borrower. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive other than its rights under Sections 2.11, 2.14 and 8.04 to the payment in full of the Obligationsextent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis 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: (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, 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 Administrative Agent shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan.
(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, Swing Loanwithout limitation, Letter all or a portion of Credit Obligationits Commitment, Reimbursement Obligationthe Advances owing to it and any Note or Notes held by it); provided, nor 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 Assignment and Acceptance or Assumption such Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders shall be effective unless 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.
(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 is entered from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Register Advances owing to it and any Note or Notes held by it) in due coursefavor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) (A) if any such assignment shall be of the assigning Lender’s Revolving Credit 's Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit 's Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignor’s 's entire interest) be less than $5,000,000 10,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) except, in either case, with the consent of the Borrower and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
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 the prior consent of the Administrative Agent, each Issuer Agent and the Borrower (which consents 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; and provided, further, that no such sale, transfer, negotiation or assignment shall be permitted if, after giving effect to such sale, transfer, negotiation or assignment, Affiliates of the Borrower that are Lenders would hold, collectively, greater than or equal to 50% of the outstanding Loans or Commitments, as the case may be, under the Facility.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Note (if the assigning Lender's Loans are evidenced by a Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register of any Assignment and Acceptance and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notation in the Register and (iii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those which survive surviving the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 (Notices, Etc.) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for shall record in the recording of Register the names and addresses of the Lenders and Issuers and the Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Reimbursement Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time and the Commitments of each Lender. Any assignment pursuant to this Section 11.2 shall not be effective until such assignment is recorded in the Register.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the “Revolving Credit Facility Register” Administrative Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record or cause to be recorded 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, if requested by such assignee, execute and deliver to the Administrative Agent new Notes to the order of such assignee in an amount equal to the Commitments and Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Note for exchange in connection with the assignment and has retained Commitments or Loans hereunder, new Notes to the order of the assigning Lender in an amount equal to the Commitments and Loans retained by it hereunder. Such new Notes shall be dated the same date as the surrendered Notes and be in substantially the form of Exhibit B (Form of Note).
(e) In addition to the other assignment rights provided in this Section 11.2, each Lender may do each of the following:
(i) grant to a Special Purpose Vehicle the option to make all or any part of any 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 Loans pursuant thereto shall satisfy (once and to the extent that such Loans are made) the obligation of such Lender to make such Loans thereunder; provided, however, that (A) nothing herein shall constitute a commitment or an offer to commit by such a Special Purpose Vehicle to make Loans hereunder and no such Special Purpose Vehicle shall be liable for any indemnity or other Obligation (other than the making of Loans for which such Special Purpose Vehicle shall have exercised an option, and then only in accordance with the relevant option agreement) and (B) such Lender's obligations under the Loan Documents shall remain unchanged, such Lender shall remain responsible to the other parties for the performance of its obligations under the terms of this Agreement and shall remain the holder of the Obligations for all purposes hereunder; 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 Loans), to (A) without notice to or consent of the Administrative Agent or the “Register”Borrower, any Federal Reserve Bank (pursuant to Regulation A of the Federal Reserve Board) and (B) without consent of the Administrative Agent or the Borrower, (1) any holder of, or trustee for the benefit of, the holders of such Lender's Securities and (2) any Special Purpose Vehicle to which such Lender has granted an option pursuant to clause (i) above; provided, however, that no such assignment or grant shall release such Lender from any of its obligations hereunder except as expressly provided in clause (i) above and except, in the case of a subsequent foreclosure pursuant to an assignment as collateral, if such foreclosure is made in compliance with the other provisions of this Section 11.2 other than this clause (e) or clause (f) below. 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 (e) any bankruptcy, reorganization, insolvency or liquidation proceeding (such agreement shall survive the payment in full of the Obligations). The entries in terms of the Revolving Credit Facility Register designation of, or assignment to, such Special Purpose Vehicle shall not restrict such Lender's ability to, or grant such Special Purpose Vehicle the right to, consent to any amendment or waiver to this Agreement or any other Loan Document or to the departure by the Borrower from any provision of this Agreement or any other Loan Document without the consent of such Special Purpose Vehicle except, as long as the Administrative Agent and the Lenders, Issuers and other Secured Parties shall continue to, and shall be conclusive entitled to continue to, deal solely and binding for directly with such Lender in connection with such Lender's obligations under this Agreement, to the extent any such consent would reduce the principal amount of, or the rate of interest on, any Obligations, amend this clause (e) or postpone any scheduled date of payment of such principal or interest. Each Special Purpose Vehicle shall be entitled to the benefits of Sections 2.14 (Capital Adequacy), 2.15 (Taxes) and 2.13(d) (Illegality) as if it were such Lender; provided, however, that anything herein to the contrary notwithstanding, the Borrower shall not, at any time, be obligated to make under Section 2.14 (Capital Adequacy), 2.15 (Taxes) or 2.13(d) (Illegality) to any such Special Purpose Vehicle and any such Lender any payment in excess of the amount the Borrower would have been obligated to pay to such Lender in respect of such interest if such Special Purpose Vehicle had not been assigned the rights of such Lender hereunder; and provided, further, that such Special Purpose Vehicle shall have no direct right to enforce any of the terms of this Agreement against the Borrower, the Administrative Agent or the other Lenders.
(f) Each Lender may sell participations to one or more Persons in or to all purposesor a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Loans and Letters of Credit). The terms of such participation shall not, absent manifest errorin any event, and 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 any Loan Party 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 Loan Parties), except if any such amendment, waiver or other modification or consent would (i) 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 (ii) result in the release of all or substantially all of the Collateral other than in accordance with Section 10.8 (b) (Collateral and Guarantee Matters). 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 Agreement and (z) 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. Each participant shall be entitled to the benefits of Sections 2.14 (Capital Adequacy), 2.15 (Taxes) and 2.13(d) (Illegality) 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 Section 2.14 (Capital Adequacy), Section 2.15 (Taxes) or Section 2.13(d) (Illegality) 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 been obligated to pay to such Lender in respect of such interest had such participation not been sold and provided, further, that such participant in the rights and obligations of such Lender shall have no direct right to enforce any of the terms of this Agreement against the Borrower, the Administrative Agent or the other Lenders.
(g) Any Issuer may at any time assign its rights and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the Borrower, the Administrative Agent, such Issuer and such Lender, subject to the Lenders and the Issuers shall treat each Person whose name is recorded provisions of Section 2.6 (b) (Evidence of Debt) relating to notations of transfer in the Revolving Credit Facility Register as Register. If any Issuer ceases to be a Lender or as an Issuerhereunder by virtue of any assignment made pursuant to this Section 11.2, then, as of the case may beeffective date of such cessation, for all purposes such Issuer's obligations to Issue any Letters of this Agreement. The Revolving Credit Facility Register pursuant to Section 2.3 (Letters of Credit) shall terminate and such Issuer shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time an Issuer hereunder only with respect to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter outstanding Letters of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due courseissued prior to such date.
Appears in 1 contract
Assignments and Participations. (a) Each Lender The 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, except that (i) the Borrower may sell, transfer, negotiate not assign or assign to one or more Eligible Assignees all or a portion otherwise transfer any of its rights and or obligations hereunder without the prior written consent of each Lender, and (including all ii) a Lender may not assign or otherwise transfer any of its rights and or obligations with respect hereunder to the Revolving Loans, the Swing Loans and the Letters of Credit)anyone other than an Eligible Assignee; provided, however, that:
(i) if any that a Lender shall provide notice of such assignment shall be to the Borrower, the Servicer, the Backup Servicer and the Deal Agent. Except in the case of an assignment to another then existing Lender, an Affiliate of a Lender, an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or Revolving Credit Outstandings and Loans, the amount of the Commitment or Revolving Credit Commitment, such Loans subject to any assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount 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 (if less than the Assignor’s entire interest) not be less than $5,000,000 10,000,000, unless the Deal Agent, and, so long as no Termination Event has occurred and is continuing or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 notany Federal Reserve Bank, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer and the Borrower otherwise consents (which consents shall each such consent not to be unreasonably withheld or delayed); . Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and provided, further, that, notwithstanding any other provision of obligations under this Section 11.2, Agreement with respect to the consent of Revolving Loans or the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) Commitment assigned. The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Deal Agent an Assignment and Acceptance. Upon such execution, delivery, acceptance Assumption (together with a processing and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment recordation fee in the amount of $3,500 (other than 3,500; provided, that the Deal Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment) and shall provide a copy thereof to the Collateral Agent, the Servicer, the Backup Servicer and the Borrower. The assignee, if it is not a Lender, shall deliver to the Deal Agent an assignment by a Lender Administrative Questionnaire. Nothing in this Agreement, expressed or implied, shall be construed to an Affiliate of such Lender or by confer upon any Agent or Person (other than the parties hereto, their respective Affiliates) from successors and after the effective date specified in such Assignment and Acceptanceassigns permitted hereby, (i) the assignee thereunder shall become a party hereto and, or any participants to the extent that rights and obligations provided in Section 12.1(b) hereof) any legal or equitable right, remedy or claim under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, or by reason of this Agreement.
(b) Any Lender shall have the rights and obligations of right to grant participations in all or a Lender, and if such Lender were an Issuer, portion of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that Lender’s rights and and/or obligations under this Agreement have been assigned by it pursuant (including all or a portion of its Commitment and/or the Revolving Loans owing to it) to one or more other banking institutions (each such Assignment person a “Participant”), and Acceptancesuch Participants shall be entitled to the benefits of this Agreement, relinquish its rights including, without limitation, Sections 2.10 and 2.11 hereof, to the same extent as if they were a direct party hereto; provided that (except those which survive the payment in full of the Obligationsi) and be released from its such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the Loan Documents, other than those relating parties hereto for the performance of such obligations and (iii) the Borrower and the other parties hereto shall continue to events or circumstances occurring prior to deal solely and directly with such assignment (and, Lender in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning connection with such Lender’s rights and obligations under this Agreement, and provided further that no such Participant shall be entitled to receive payment hereunder of any amount greater than the Loan Documentsamount which would have been payable had such Lender not granted a participation to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. Upon the grant of a participation of any Lender’s rights and/or obligations under this Agreement, such Lender will promptly notify the Borrower of the Participant and the proportionate amount granted under such participation. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall cease have any obligation to be disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a party hereto)Participant's interest in any commitments, loans or its other obligations under any Transaction 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.
(c) The Administrative Agent Deal Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its address referred to offices in Section 11.8 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Lenders, and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount amounts (and stated interest) of the Revolving LoansLoans owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer pursuant to the terms hereof from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Deal Agent and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register pursuant to the terms hereof as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents any Lender, at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.
Appears in 1 contract
Sources: Loan and Security Agreement (Credit Acceptance Corp)
Assignments and Participations. (a) Each Lender may selland, transferif requested by the Borrower upon notice by the Borrower delivered to such Lender and the Administrative Agent pursuant to clause (ii) of Section 2.16, negotiate or will, assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving Loans, the Swing Loans Commitment and the Letters Advances owing to it and any Note or Notes held by it, its LC Commitment and participations in Letter of CreditCredit Liability); provided, however, that:
that (i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a constant, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings all rights and Revolving Credit Commitment;
obligations under this Agreement, (ii) the aggregate amount (without duplication) of the Commitment, pro-rata share of outstanding Advances and pro-rata share of participations in Letter of Credit Liability of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance) shall not be less than $12,500,000 (unless the assigning Lender shall assign its entire interest hereunder or such lesser amount is previously agreed among such assigning Lender, the Administrative Agent and the Borrower) or an integral multiple of $500,000 in excess thereof, (iii) the sum of (A) the amount (without duplication) of the Commitment, pro-rata share of outstanding Advances and pro-rata share of participations in Letter of Credit Liability of the assigning Lender being assigned pursuant to each such assignment and (B) the amount of the commitment and pro-rata share of outstanding advances of the assigning Lender being contemporaneously assigned under the Four-Year Credit Agreement by the Person that is such assigning Lender (in both cases determined as of the date of the Assignment and Acceptance or similar agreement with respect to such assignmentassignments) shall in no event (if less than the Assignor’s entire interest) not be less than $5,000,000 25,000,000 in the aggregate (unless the assigning Lender shall assign its entire interest hereunder and thereunder or such lesser amount is previously agreed among such assigning Lender, the Administrative Agent and the Borrower) or an integral multiple of $1,000,000 in excess thereof, except (I) with provided, however, that if the consent aggregate amount of the Borrower and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund Commitment of such Lender; and
(iii) if such Eligible Assignee assigning Lender hereunder and its commitment under the Four-Year Credit Agreement is not, prior to less than $25,000,000 on the date of such assignmentproposed assignments, a such assigning Lender or may assign all, but not less than all, of its remaining rights and obligations under this Agreement and the Four-Year Credit Agreement (unless an Affiliate or Approved Fund assignment of a portion of such assigning Lender’s obligations hereunder and thereunder is otherwise previously agreed among such assigning Lender, the Administrative Agent and the Borrower), (iv) each such assignment shall be subject to an Eligible Assignee, and (v) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment (other than the Borrower) shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligationsother than any rights such Lender assignor may have under Sections 2.11, 2.14 and 9.08) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis 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: (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 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 any of its Subsidiaries or the performance or observance by the Borrower of any of its obligations under this Agreement or any 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(c) 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 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 Administrative 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 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 11.8 9.02 a copy of each Assignment and Acceptance and each Assumption Agreement delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment and the LC Commitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreement, shall be effective unless executed by an assigning Lender and an assignee representing that it is entered an Eligible Assignee and, if applicable, the Borrower, 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 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 and each Issuing Bank.
(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, LC Commitment and the Advances owing to it and any Note issued to it hereunder); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment and LC 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) such Lender shall not agree in any participation agreement with any participant or proposed participant to obtain the consent of such participant before agreeing to the amendment, modification or waiver of any of the terms of this Agreement or any Note, before consenting to any action or failure to act by the Borrower or any other party hereunder or under any Note, or before exercising any rights it may have in respect thereof, unless such amendment, modification, waiver, consent or exercise would (A) increase the amount of such participant’s portion of such Lender’s Commitment, (B) reduce the principal amount of or rate of interest on the Advances, any amount due coursehereunder with respect to the Letters of Credit or any fee or other amounts payable hereunder to which such participant would be entitled to receive a share under such participation agreement, or (C) postpone any date fixed for any payment of principal of or interest on the Advances, for amounts due with respect to Letters of Credit or any fee or other amounts payable hereunder to which such participant would be entitled to receive a share under such participation agreement.
(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 the Borrower furnished to such Lender by or on behalf of the Borrower in writing and directly related to the transactions contemplated hereunder; 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 in accordance with the terms of Section 9.09.
(g) No participation or assignment hereunder shall be made in violation of the Securities Act of 1933, as amended from time to time, or any applicable state securities laws, and each Lender hereby represents that it will make any Advance for its own account in the ordinary course of its business and not with a view to the public distribution or sale thereof.
(h) Anything in this Agreement to the contrary notwithstanding, any Lender may at any time assign or create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and any Note 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 thereto) and the applicable operating circular of such Federal Reserve Bank.
Appears in 1 contract
Sources: Credit Agreement (Walt Disney Co/)
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees banks or other entities (including any trust or other Person 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 hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving LoansCommitment or Commitments, the Swing Loans and Advances owing to it and/or the Letters Note or Notes held by it) without the consent of Credit)the Borrower; provided, however, provided that:
(i) if any 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 all of a Lender's rights and obligations under this Agreement, the amount of the Commitment and/or Advances of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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 continuing5,000,000.
(bii) The the parties to each such assignment shall shall
(A) execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500, and
(B) deliver a copy of such Assignment and Acceptance to the Borrower at the time it delivers a copy to the Administrative Agent;
(iii) prior to the Facility A Commitment Termination Date for assignments relating to Facility A Commitments or Advances and the Facility B Commitment Termination Date for assignments relating to Facility B Commitments or Advances, assignments to Persons that have a combined capital and surplus in excess of [*];
(iv) [*] --------------------------------------------------------------------------- * CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC 140
(v) the assigning Lender's rights under Article IV and Section 12.04 accrued through the date of assignment shall continue, and A Lender may assign outstanding Advances without assigning undrawn Commitments, and may assign undrawn Commitments without assigning outstanding Advances. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations hereunder and under the Loan Documents Intercreditor Agreement have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under this Agreement and the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment Intercreditor Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis 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:
(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, the Intercreditor Agreement and each other Loan Document, together with copies of the financial statements referred to in Section 5.04 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; 141
(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;
(vii) such assignee makes the representations in subsection (a)(iv) above; and
(viii) such assignee confirms that it is bound by the confidentiality provisions in Section 12.10.
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 12.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Assumption AgreementNotes subject to such assignment, 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. 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 assignee in an amount equal to the Advances and/or Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained Advances or Commitments hereunder, a new Note to the order of the assigning Lender in an amount equal to the Advances and/or Commitments 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 unless it is entered date of such Assignment and Acceptance and shall otherwise be substantially in the form of Exhibit C.
(e) Each Lender may sell participations 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 held by it); provided that
(i) such Lender's obligations under this Agreement (including 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, and
(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.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 12.07, 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 received by it from such Lender.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including 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.
(h) The Borrower shall maintain, or cause to be maintained, a register (the "Registered Note Register") (which, at the request of the Borrower, shall be kept by the Administrative Agent on behalf of the Borrower at no extra charge to the Borrower at the address to which notices to the Administrative Agent are to be send hereunder) on which it enters the name of the registered owner of each of the Loans evidenced by a Registered Note. Notwithstanding anything to the contrary contained in this Section 12.07(h), a Registered 143 Note and the Loans evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Registered Note and the Loans evidenced thereby on the Registered Note Register (and each Registered Note shall expressly so provide). Any assignment or transfer of all or part of such Loans and the Registered Note evidencing the same shall be registered on the Registered Note Register only upon surrender for registration of assignment or transfer of the Registered Note evidencing such Loans, duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the registered noteholder thereof, and thereupon 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 due coursepresentment for registration of transfer of any Registered Note, the Borrower and the Administrative Agent shall treat the Person in whose name such Loans and the Registered Note(s) evidencing the same are registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding any notice to the contrary. The Registered Note Register shall be available for inspection by the Borrower and any Lender at any reasonable time upon reasonable prior notice.
Appears in 1 contract
Sources: Loan Agreement (Omnipoint Corp \De\)
Assignments and Participations. (a) Each Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) if for any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
, (ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than $€5,000,000 or an integral multiple of $1,000,000 €500,000 in excess thereofthereof and except, except in either case, (IA) with the consent of the Borrower and the Administrative Agent (in each case such consent not to be unreasonably withheld); or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
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 the prior consent of the Administrative Agent, each Issuer Agent and the Borrower (which consents consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.212.2, the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and Acceptance, together with any Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreementand, shall be effective unless it is entered other than in the Register in due course.respect of assignments made pursuant to Section 2.18 (Substitution of Lenders) and Section 12.1
Appears in 1 contract
Sources: Credit Agreement (FMC Corp)
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees (other than to any Disqualified Institution) 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:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignorassignor’s entire interest) be less than (x) in the case of Revolving Credit Outstandings and Revolving Credit Commitments, $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the case of Term Loans, $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
a Lender (other than any Disqualified Institution), (iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a LenderLender (other than any Disqualified Institution), such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer Agent and the Borrower (which consents shall not be unreasonably withheld or delayed)) and (iv) if such Eligible Assignee is not, prior to the date of such assignment, a Revolving Credit Lender or an Affiliate of a Revolving Credit Lender, any such assignment with respect to Revolving Credit Outstandings and Revolving Credit Commitments shall be subject to the prior consent of each Issuer and Swing Lender; and provided, however 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 5 Business Days after having received notice thereof; provided, further, that, notwithstanding any other provision of this Section 11.213.9, the consent of the Borrower shall not be required for any assignment occurring when any Event of Default under Section 9.1(a), (b) or (f) (Events of Default) shall have occurred and be continuing.
continuing and (bv) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender no Revolving Credit Commitments or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been Revolving Loans may be assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a any Affiliated Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to . Any such assignment (and, in need not be ratable as among the case of an Assignment Term Loan Facility and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due courseFacility.
Appears in 1 contract
Assignments and Participations. (a) No Obligor may assign any of its rights or obligations hereunder or under the Notes without the prior consent of all of the Lenders and the Administrative Agent.
(b) Each Lender may sellassign any of its Loans, transferits Notes, negotiate or assign to one or more Eligible Assignees all its Commitments, and, if such Lender is a Revolving Credit Lender, its Letter of Credit Interest (but only with the consent of, (x) in the case of its outstanding Commitments, the Borrower and the Administrative Agent, which consent in either case shall Credit Agreement not be unreasonably withheld and, (y) in the case of the Revolving Credit Commitment or a portion Letter of its rights and obligations hereunder (including all of its rights and obligations with respect to the Revolving LoansCredit Interest, the Swing Loans and the Letters of CreditIssuing Lender); provided, however, provided that:
(i) if any no such assignment consent by the Borrower, the Administrative Agent or the Issuing Lender shall be required in the case of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such any assignment shall cover the same percentage to another Lender (or any of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitmentits Affiliates);
(ii) except to the aggregate amount 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of extent the Borrower and the Administrative Agent or shall otherwise consent, any such partial assignment (IIother than to another Lender) if shall be in an amount at least equal to $5,000,000, and after giving effect thereto, the assigning Lender shall have Commitments and Loans in an aggregate amount of at least $5,000,000;
(iii) each such assignment is being made to by a Lender of its Revolving Credit Loans, Revolving Credit Note, Revolving Credit Commitment or an Affiliate or Approved Fund Letter of Credit Interest shall be made in such Lendermanner so that the same portion of its Revolving Credit Loans, Revolving Credit Note, Revolving Credit Commitment and Letter of Credit Interest is assigned to the respective assignee;
(iv) each such assignment by a Lender of its Term Loans shall be made in such manner so that the same portion of its Term Loans and Term Loan Commitment is assigned to the respective assignee; and
(iiiv) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, each such assignment shall be subject effected pursuant to an Assignment and Acceptance substantially in the prior consent form of Exhibit G hereto, executed by the Administrative Agent, each Issuer assigning Lender and the Borrower (which consents shall not be unreasonably withheld or delayed); assignee 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.
(b) The parties to each assignment shall execute and deliver delivered to the Administrative Agent, Agent for its acceptance and recording in the Register (as defined in clause (c) register referred to below), an . Upon execution and delivery of such Assignment and Acceptance. Upon such execution, deliveryand subject to the consent thereto by the Borrower, acceptance and recording in the Register and the receipt by the Administrative Agent from and the Issuing Lender to the extent required above, the assignee shall have, to the extent of an such assignment fee in (unless otherwise consented to by the amount Borrower, the Administrative Agent and the Issuing Lender), the obligations, rights and benefits of $3,500 (other than in the case of an assignment by a Lender hereunder holding the Commitment(s), Loans and, if applicable, Letter of Credit Interest (or portions thereof) assigned to an Affiliate of such Lender or by any Agent or their respective Affiliates) from it and after the effective date specified in such Assignment and Acceptance, Acceptance (i) the assignee thereunder shall become a party hereto and, in addition to the extent that rights Commitment(s), Loans and obligations under Letter of Credit Interest, if any, theretofore held by such assignee) and the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such assigning Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events Commitment(s) (or circumstances occurring prior to portion(s) thereof) so assigned. Upon each such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an Credit Agreement assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) pay the Administrative Agent an assignment fee of $3,000. The Administrative Agent shall maintain at its address referred to in Section 11.8 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying owing by the Reimbursement Obligations) owing Borrower to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”)time. The entries in the Revolving Credit Facility Register such register shall be conclusive and binding for all purposesconclusive, absent manifest in the absence of clearly demonstrable error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, therein as the case may be, owner of the Loan or Loans recorded therein for all purposes of this Agreement. The Revolving Credit Facility Register Such register shall be available for inspection by the Borrower and the Facility Agents any Lender at any reasonable time and from time to time upon reasonable prior notice.
(c) A Lender may sell or agree to sell to one or more other Persons (each a "Participant") a participation in all or any part of any Loans or Letter of Credit Interest held by it, or in its Commitments, provided that such Participant shall not have any rights or obligations under this Agreement or any Note or any other Loan Document (the Participant's rights against such Lender in respect of such participation to be those set forth in the agreements executed by such Lender in favor of the Participant). No Revolving Loan, Swing LoanAll amounts payable by the Borrower to any Lender under Section 5 hereof in respect of Loans, Letter of Credit ObligationInterest held by it, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreementits Commitments, shall be effective unless determined as if such Lender had not sold or agreed to sell any participations in such Loans, Letter of Credit Interest and Commitments, and as if such Lender were funding each of such Loans, Letter of Credit Interest and Commitments in the same way that it is entered funding the portion of such Loans, Letter of Credit Interest and Commitments in which no participations have been sold. In no event shall a Lender that sells a participation agree with the Participant to take or refrain from taking any action hereunder or under any other Loan Document except that such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (i) extend the term of such Lender's related Commitment or extend the amount or date of any scheduled reduction of such Commitment pursuant to Section 2.04 hereof, (ii) extend the date fixed for the payment of principal of or interest on the related Loan or Loans, Reimbursement Obligations 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) consent to any modification, supplement or waiver hereof or of any of the other Loan Documents to the extent that the same, under Section 11.09 or 12.04 hereof, requires the consent of each Lender. Credit Agreement
(d) In addition to the assignments and participations permitted under the foregoing provisions of this Section 12.06, any Lender may (without notice to the Borrower, the Administrative Agent or any other Lender and without payment of any fee)
(i) assign and pledge all or any portion of its Loans and its Notes to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve 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 assigning Lender from its obligations hereunder (except that such assignment shall release the assigning Lender to the extent the same is effected in accordance with the provisions of paragraph (b) above).
(e) A Lender may furnish any information concerning the Borrower or any of its Subsidiaries in the Register possession of such Lender from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the provisions of Section 12.12(b) hereof.
(f) Anything in due coursethis Section 12.06 to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan or Reimbursement Obligation held by it hereunder to the Borrower or any of its Affiliates or Subsidiaries without the prior consent of each Lender, except that this paragraph (f) shall not prohibit any such assignment or participation to any Affiliate of the Borrower that is a bank or trust company organized under the laws of the United States of America or a State thereof and that is supervised by the Office of the Comptroller of the Currency or the Board of Governors of the Federal Reserve.
(g) At the request of any Lender that is not a U.S. Person and is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, the Borrower shall maintain, or cause to be maintained, a register (which will be separate from the register referred to in the last sentence of Section 12.06(b) hereof) that, at the request of the Borrower, shall be kept by the Administrative Agent on behalf of the Borrower at no charge to the Borrower at the address to which notices to the Administrative Agent are to be sent hereunder, on which it enters the name of such Lender as the registered owner of each Registered Loan held by such Lender. A Registered Loan (and the Registered Note, if any, evidencing the same) may be assigned or otherwise transferred in whole or in part by registration of such assignment or transfer on such register (and each Registered Note shall expressly so provide). Any assignment or transfer of all or part of such Loan (and the Registered Note, if any, evidencing the same) may be effected by registration of such assignment or Credit Agreement transfer on such 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 transfer 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 transfer of any Registered Loan (and the Registered Note, if any, evidencing the same), the Borrower shall treat the Person in whose name such 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. The register referred to above in this Section 12.06(g) shall be available for inspection by the Borrower and any Lender that is a Registered Holder at any reasonable time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (Panavision Inc)
Assignments and Participations. (a) Each Lender may sellassign (i) without the approval of the Borrower, transfer, negotiate or assign to one or more Eligible Assignees if the Eligible Assignee is a Lender or is an Affiliate of the assigning Lender which satisfies the credit rating requirements of the second proviso of the definition of "Eligible Assignee", (ii) without the approval of the Borrower, to one or more Persons (which need not be Eligible Assignees) after the occurrence and during the continuation of an Event of Default, provided, however, that if such Person is not an Eligible Assignee the approval of each Issuing Bank shall have been obtained, such approval not to be unreasonably withheld or delayed, (iii) with the approval of the Borrower, such approval not to be unreasonably withheld or delayed, to any Eligible Assignee in any case not contemplated by the preceding clause (i) or (ii) and (iv) with the approval of the Borrower, each Issuing Bank and the Agent, to one or more Persons in any case not contemplated by the preceding clause (i), (ii) or (iii), all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to Revolving Credit Commitment, the Revolving Loans, the Swing Loans Credit Advances owing to it and the Letters of CreditRevolving Credit Note or Notes held by it); provided, however, that:
that (i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a constant, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings all rights and Revolving Credit Commitment;
obligations under this Agreement, (ii) except in the aggregate case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than $5,000,000 10,000,000 or an a larger integral multiple of $1,000,000 in excess thereof1,000,000, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined Register, and, if the relevant Eligible Assignee is not listed in clause (ci) below)of the definition of "Eligible Assignee", to the Borrower for its acceptance, an appropriate Assignment and Acceptance, together with any Revolving Credit Note subject to such assignment and a processing and recordation fee of $3,500 unless the relevant Eligible Assignee is an Affiliate of the assigning Lender and (iv) notwithstanding the foregoing, Competitive Bid Advances may be assigned as contemplated by the related Notice of Competitive Bid Borrowing. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, this Agreement (other than those relating to events or circumstances occurring prior to such assignment under Sections 2.14(f), 8.07(g) and 8.08) (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto).
(b) If any Lender (i) shall make a demand under Section 8.04(d) for payment in respect of a claim under Section 2.11 or shall give a notice under Section 2.12 of any unlawfulness or assertion of unlawfulness contemplated by such Section or any demand shall be made or any amount shall be payable with respect to any Lender under Section 2.14 or (ii) is a Non-Consenting Lender, the Borrower may, by written notice given to such Lender within 45 days of the making by such Lender of such demand, the giving by such Lender of such notice or such Lender becoming a Non-Consenting Lender, require by written notice to such Lender that such Lender assign, by executing and delivering an Acceptance and Assignment, within 15 days of the giving by the Borrower of such notice but on at least three Business Days' notice to one or more Persons in accordance with Section 8.07(a) such Lender's Revolving Credit Commitment and its Advances against payment to such Lender in immediately available funds of the principal amount of such Advances, all interest accrued thereon to the date of payment, all fees accrued by such Lender to the date of payment, any amounts payable to such Lender under Section 8.04(c) and all other amounts payable hereunder to such Lender.
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or 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 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 that it is an entity that has been approved by the Borrower and the Agent under Section 8.07(a); (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.
(d) The Administrative Agent shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of Commitment of, and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents 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 representing that it is an Eligible Assignee or that it is an entity that has been approved by the Borrower and the Agent under Section 8.07(a), together with any Revolving Credit 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-1 hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) promptly give notice and a copy 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 Revolving Credit Note a new Revolving Credit Note to such Eligible Assignee or other entity in an amount equal to the Revolving Credit Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment hereunder, a new Revolving Credit Note to the assigning Lender in an amount equal to the Revolving Credit Commitment retained by it hereunder. Such new Revolving Credit 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 hereto.
(f) 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 Revolving Credit 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 Revolving Credit 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 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 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 and (vi) notwithstanding the foregoing, each Lender may sell participations in Competitive Bid Advances as contemplated by the related Notice of Competitive Bid Borrowing. Each Lender selling participations shall provide prompt notice to the Borrower and the Agent of such participations and the purchasers of such participations.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and the Note 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.
(i) Any Lender may at any time designate with the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) not more than one Designated Lender to fund Advances on behalf of such Designating Lender subject to the terms of this Section 8.07(i) and the provisions of Sections 8.07(a) through (h) shall not apply to such designation. No Revolving LoanLender may have more than one Designated Lender at any time. Such designation may occur either by the execution before the Effective Date of the signature pages of an Assignment and Acceptance by such Lender and Designated Lender next to the appropriate "Designating Lender" and "Designated Lender" captions, Swing Loan, Letter or by execution by such parties of Credit Obligation, Reimbursement Obligation, nor a Designation Agreement on or after the Effective Date; provided that any Lender and its Designated Lender executing the signature pages of any Assignment and Acceptance or Assumption as "Designating Lender" and "Designated Lender", respectively, before the Effective Date shall be deemed to have executed a Designation Agreement, and shall be effective unless bound by the respective representations, warranties and covenants contained therein. The parties to each such designation occurring on or after the Effective Date shall execute and deliver to the Agent and the Borrower for their acceptance a Designation Agreement. Upon such receipt of an appropriately completed Designation Agreement executed by a Designating Lender and a designee representing that it is entered a Designated Lender and consented to by the Borrower, the Agent will accept such Designation Agreement and will give prompt notice thereof to the Borrower and the other Lenders, whereupon (i) the Borrower shall execute and deliver to the Designating Lender a Designated Lender Note payable to the order of the Designated Lender, (ii) from and after the effective date specified in the Register Designation Agreement, the Designated Lender shall become a party to this Agreement with a right to make Advances on behalf of its Designating Lender pursuant to Section 2.01(b) and (iii) the Designated Lender shall not be required to make payments with respect to any obligations in this Agreement except to the extent of excess cash flow of such Designated Lender which is not otherwise required to repay obligations of such Designated Lender which are then due courseand payable; provided, however, that regardless of such designation and assumption by the Designated Lender, the Designating Lender shall be and remain obligated to the Borrower, the Agent and the Lenders for each and every of the obligations of the Designating Lender and its related Designated Lender with respect to this Agreement, including, without limitation, any indemnification obligations under Section 7.05 hereof, and any sums otherwise payable to the Borrower by the Designated Lender. Each Designating Lender, or specified branch or affiliate thereof, shall serve as the administrative agent of its Designated Lender and shall on behalf of its Designated Lender: (i) receive any and all payments made for the benefit of such Designated Lender and (ii) give and receive all communications and notices and take all actions hereunder, including, without limitation, votes, approvals, waivers, consents and amendments under or relating to this Credit Agreement. Any such notice, communication, vote, approval, waiver, consent or amendment shall be signed by a Designating Lender, or specified branch or affiliate thereof, as administrative agent for its Designated Lender and need not be signed by such Designated Lender on its own behalf. The Borrower, the Agent and the Lenders may rely thereon without any requirement that the Designated Lender sign or acknowledge the same. No Designated Lender may assign or transfer all or any portion of its interest hereunder, other than via an assignment to its Designating Lender or Liquidity Lender, if any, or otherwise in accordance with the provisions of Section 8.07(a) through (h) hereof.
Appears in 1 contract
Sources: Credit Agreement (Mirant Corp)
Assignments and Participations. (a) Each Lender may 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 Revolving Loans, the Swing Tranche A Loans and the Letters of CreditTranche B Loans); providedPROVIDED, howeverHOWEVER, that:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount 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 (if less than the Assignor’s 's entire interest) be less than $5,000,000 1,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
, and (iiiii) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and Acceptance, together with any Note (if the assigning Lender's Loans are evidenced by a Note) subject to such assignment. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 SECTION 11.9 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”"REGISTER"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register Solely for the purposes of maintaining the Register, the Administrative Agent shall be available deemed to be the Borrower's agent, in addition to agent for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter Lenders.
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreementexecuted by an assigning Lender and an assignee, shall be effective unless it is entered 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 the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall, if requested by such assignee, execute and deliver to the Administrative Agent, new Notes to the order of such assignee in due coursean amount equal to the Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Note for exchange in connection with the assignment and has retained Loans hereunder, new Notes to the order of the assigning Lender in an amount equal to the Loans retained by it hereunder. Such new Notes shall be dated the same date as the surrendered Notes and be in substantially the form of EXHIBIT B hereto.
(e) In addition to the other assignment rights provided in this SECTION 11.2, each Lender may pledge or assign a security interest in any of its rights under this Agreement (including rights to payments of principal or interest on the Loans) to secure obligations to (i) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board and (ii) in the case of any Lender that is a Fund, any holders of obligations owed or Securities issued by such Lender as security for such obligations or Securities, or any trustee for, or any other representative of, such holders, and this Section shall not apply to any such pledge or assignment of a security interest; PROVIDED, HOWEVER, that no such assignment shall release the assigning Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) 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 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 any Loan Party therefrom, or to the exercising or refraining from exercising any powers or rights which such Lender may have under or in respect of the Loan Documents (including the right to enforce the obligations of the Loan Parties), except if any such amendment, waiver or other modification or consent would (i) 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 (ii) result in the release of all or substantially all of the Collateral other than in accordance with SECTION 10.7(A) OR (B), as applicable. In the event of the sale of any participation by any Lender, (A) such Lender's obligations under the Loan Documents shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties for the performance of such obligations, (C) such Lender shall remain the holder of such Obligations for all purposes of this Agreement, and (D) 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. Each participant shall be entitled to the benefits of SECTIONS 2.14, 2.15 and 2.16 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 pay to any participant of any interest of any Lender, under SECTION 2.14, 2.15 or 2.16, any sum in excess of the sum which the Borrower would have been obligated to pay to such Lender in respect of such interest had such participation not been sold.
Appears in 1 contract
Assignments and Participations. (a) Each Lender Bank may selland, transferif demanded by the Borrower pursuant to subsection (g) hereof, negotiate or shall assign to one or more Eligible Assignees banks or other entities all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its Commitment and the Advances and Special Rate Loans owing to it); provided that (i) each such assignment shall (except in the case of outstanding Auction Advances and Special Rate Loans) be of a constant, and not a varying, percentage of all of its the rights and obligations with respect to 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 CommitmentBanks under this Agreement, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount of the Commitment of the assigning Bank being assigned pursuant to each 5-YEAR CREDIT AGREEMENT such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if be less than the Assignor’s entire interestlesser of (x) the amount set forth opposite the name of such Bank on Schedule I to this Agreement or in the Assignment and Acceptance pursuant to which the assigning Bank became a Bank, and (y) $25,000,000, and shall be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof1,000,000, except (I) with the consent of unless otherwise agreed by the Borrower and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
Agent, (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, each such assignment shall be subject to an Eligible Assignee and (iv) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with a processing fee of $3,500. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, which effective date shall be at least three Business Days after the execution thereof, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer Bank hereunder and thereunder, and (iiy) the Bank assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning LenderBank’s rights and obligations under the Loan Documentsthis Agreement, such Lender Bank shall cease to be a party hereto), provided that the obligations of the Borrower to the Bank assignor described in Sections 2.02(b), 2.11, 2.12, 2.15, 8.04 and 8.12 that arose prior to such assignment, and the obligations of the Bank assignor described in Sections 7.05 and 8.10 that arose prior to such assignment, shall survive the making of such assignment, notwithstanding that such Bank assignor may cease to be a “Bank” hereunder. Notwithstanding the foregoing, any Bank assigning its rights and obligations under this Agreement may retain any Auction Advances and any Special Rate Loans made by it outstanding at such time, and in such case shall retain its rights hereunder in respect of any Advances and Special Rate Loans so retained until such Advances and Special Rate Loans have been repaid in full in accordance with this Agreement. Notwithstanding anything to the contrary contained in this Agreement, any Bank (a “Granting Bank”) may grant to a special purpose vehicle (an “SPV”) affiliated with such Granting Bank (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 Advances or Special Rate Loans that such Granting Bank would otherwise be obligated to make to the Borrower pursuant to Article II, provided that (i) nothing herein shall constitute a commitment by any SPV to make any Advances or Special Rate Loans, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Advances or Special Rate Loans, the Granting Bank shall be obligated to make such Advances or Special Rate Loans pursuant to the terms hereof automatically and without any action by any other Person and (iii) the Borrower may bring any proceeding against either the Granting Bank or the SPV in order to enforce any rights of the Borrower hereunder. The making of an Advance or Special Rate Loan by an SPV hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance or Special Rate Loan were made by the Granting Bank. Each party hereto hereby agrees that no SPV shall be liable for any payment under this Agreement for which a Bank would otherwise be liable, for so long as, and to the extent, the related Granting Bank 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 Agreement (1) any SPV may with notice to (but without the prior written consent of) the Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances or Special Rate Loans to its Granting Bank or to any financial institutions (consented to by the Borrower and the Administrative Agent) providing liquidity and/or credit support (if any) with respect to commercial paper issued by such SPV to fund such Advances or Special Rate Loans; and (2) such SPV may disclose, on a confidential basis, confidential information with respect to the Borrower and its Subsidiaries to any rating agency, 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 each SPV at the time holding Advances or Special Rate Loans under this Agreement.
(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 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 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; (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 Bank.
(c) The Administrative Agent shall maintain at its first address referred to in Section 11.8 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Banks and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer Bank from time to time (the “Revolving Credit Facility Register” or the “Register”). The Subject to Section 2.14(f), the entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, the Lenders Agent and the Issuers shall Banks may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, Bank hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Bank at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreement, shall be effective unless executed by an assigning Bank and an assignee representing that it is entered 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 in due courseRegister, (iii) give prompt notice thereof to the Borrower and (iv) send a copy thereof to the Borrower.
Appears in 1 contract
Assignments and Participations. (a) No Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 8.07(b), (ii) by way of participation in accordance with the provisions of Section 8.07(f), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 8.07(h) (and any other attempted assignment or transfer by any Lender shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, participants to the extent provided in Section 8.07(f) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Each Lender may selland, transferif demanded by the Borrower in accordance with Section 2.20, negotiate or upon at least five Business Days’ notice to such Lender and the Agent, will assign to one or more Eligible Assignees Persons all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to Revolving Credit Commitment, the Revolving LoansCredit Advances owing to it, the Swing Loans its participations in Letters of Credit and the Letters of CreditRevolving Credit Note or Revolving Credit Notes held by it); provided, however, that:
that (i) if any each such assignment shall be of a constant, and not a varying, percentage of all the assigning Lender’s Lenders’ rights and obligations under this Agreement with respect to the Revolving Credit Outstandings and Advances or the Revolving Credit CommitmentCommitment assigned, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) except in the aggregate case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than $5,000,000 10,000,000 or an integral multiple of $1,000,000 in excess thereof, except unless the Borrower and the Agent otherwise agree, (Iiii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower in accordance with Section 2.20 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 in accordance with Section 2.20 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 Revolving Credit Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount, its participations in Letters of Credit and all other amounts payable to such Lender under this Agreement, (vi) the consent of the Borrower and the Administrative Agent or Issuing Banks (II) if such assignment is being made consent not 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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 that increases the obligation of Default shall have occurred and be continuing.
the assignee to participate in exposure under one or more Letters of Credit (bwhether or not then outstanding), (vii) The the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and AcceptanceAssumption, together with an Administrative Questionnaire from any assignee that is not a Lender, and any Revolving Credit Note subject to such assignment and a processing and recordation fee of $3,500 payable by the assignor or the Eligible Assignee, as applicable, 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 the Borrower except that no such recordation fee shall be payable in the case of an assignment made at the request of the Borrower to an Eligible Assignee that is an existing Lender, and (viii) any Lender may, without the approval of the Borrower and the Agent, assign all or a portion of its rights to any of its Affiliates. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and AcceptanceAssumption, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto), but shall continue to be entitled to the benefits of Section 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an event arising prior such assignment) and be released from its obligations (other than its obligations under Section 7.06 to the extent any claim thereunder relates to an event arising prior to such assignment) under this Agreement.
(c) 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 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 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, including providing such documentation as is required under Section 2.14(f).
(d) 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 Revolving Credit Notes subject to such assignment and the processing and recordation fee referred to in Section 8.07(b), 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.
(e) The Administrative Agent Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assumption Agreement and each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansCredit Advances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No .
(f) Each Lender may sell participations to any Person (other than a natural person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, or 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 Revolving LoanCredit Advances owing to it and any Revolving Credit Note or Revolving Credit Notes held by it); provided, Swing Loanhowever, Letter 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 Revolving Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Note for all purposes of this Agreement, (iv) the Borrower, the 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 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. The Borrower agrees that each participant shall be effective unless entitled to the benefits of Sections 2.11, 2.14 and 8.04(c) (subject to the requirements and limitations therein, including the requirements under Section 2.14(f) (it is entered 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 Section 8.07(b); provided that such participant (A) agrees to be subject to the provisions of Sections 2.11, 2.14 and 2.20 as if it were an assignee under Section 8.07(b); and (B) shall not be entitled to receive any greater payment under Section 2.11 or 2.14, with respect to any participation, than its participating Lender would have been entitled to receive.
(g) 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 and the Borrower shall be a named third party beneficiary under such confidentiality agreement executed by such assignee or participant or proposed assignee or participant.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall 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 Revolving Credit Notes or other obligations under this Agreement (the “Participant Register”), provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to the Borrower or any other Person (including the identity of any Participant or any information relating to a Participant’s interest in due courseany Revolving Credit Advance or its other obligations under this Agreement or any Revolving Credit Note) except to the extent that such disclosure is necessary to establish that the Revolving Credit Advances or such other obligations are 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, Borrower and the Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding 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.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Revolving Credit Advances owing to it and any Revolving Credit Note or Revolving Credit Notes held by it) to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may selland, transferif demanded by the Borrower (following a demand by such Lender pursuant to Section 2.11 or 2.14 or a suspension of Eurodollar Rate Advances pursuant to Section 2.12 and only if no Event of Default has occurred and is continuing) upon at least five Business Days' notice to such Lender and the Agent, negotiate or will assign to one or more Eligible Assignees Persons all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCredit Commitment, its undrawn Letter of Credit Commitment, the Swing Loans Advances owing to it, its participations in Letters of Credit and the Letters of CreditNote or Notes held by it); provided, however, that:
that (i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a constant, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings all rights and Revolving Credit Commitment;
obligations under and in respect of one or more of the Facilities, (ii) except in the aggregate 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 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereofthereof and (y) the undrawn Letter of Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the applicable Assignment and Acceptance) shall in no event be less than $1,000,000, except (I) with the consent of unless, in each case, the Borrower and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
otherwise agree, (iii) if each such assignment shall be to an Eligible Assignee is notAssignee, prior (iv) 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 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 9.07(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 assignmentprincipal amount and all other amounts payable to such Lender under this Agreement, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to and (vi) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, 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 no such recordation fee shall be payable in the case of an assignment made at the request of the Borrower. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive other than its rights under Sections 2.11, 2.14 and 9.04 to the payment in full of the Obligationsextent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis 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: (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, 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 any Loan Party 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 Administrative Agent shall maintain at its address referred to in Section 11.8 9.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan.
(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, Swing Loanwithout limitation, Letter all or a portion of Credit Obligationits Commitment, Reimbursement Obligationthe Advances owing to it and any Note or Notes held by it); provided, nor 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 Assignment and Acceptance or Assumption such Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders shall be effective unless 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.
(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 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 is entered from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Register Advances owing to it and any Note or Notes held by it) in due coursefavor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Sources: Annual Report
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees banks or other entities (including any trust or other Person 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 hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving LoansCommitment or Commitments, the Swing Loans and Advances owing to it and/or the Letters Note or Notes held by it) without the consent of Credit)the Borrower; provided, however, provided that:
(i) if any 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 all of a Lender's rights and obligations under this Agreement, the amount of the Commitment and/or Advances of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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 continuing5,000,000.
(bii) The the parties to each such assignment shall shall
(A) execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500, and
(B) deliver a copy of such Assignment and Acceptance to the Borrower at the time it delivers a copy to the Administrative Agent;
(iii) prior to the Facility A Commitment Termination Date for assignments relating to Facility A Commitments or Advances and the Facility B Commitment Termination Date for assignments relating to Facility B Commitments or Advances, assignments to Persons that have a combined capital and surplus in excess of $50 million;
(iv) assignments to Persons, other than a commercial bank or other financial institution, that is engaged in, or has an Affiliate that is engaged in the business of providing PCS telecommunications services to the public may be made no sooner than fifteen (15) days after acceleration of the Loans hereunder pursuant to (S)10.01 hereof;
(v) the assigning Lender's rights under Article IV and Section 12.04 accrued through the date of assignment shall continue, and A Lender may assign outstanding Advances without assigning undrawn Commitments, and may assign undrawn Commitments without assigning outstanding Advances. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations hereunder and under the Loan Documents Intercreditor Agreement have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under this Agreement and the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment Intercreditor Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis 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:
(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, the Intercreditor Agreement and each other Loan Document, together with copies of the financial statements referred to in Section 5.04 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; 141
(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;
(vii) such assignee makes the representations in subsection (a)(iv) above; and
(viii) such assignee confirms that it is bound by the confidentiality provisions in Section 12.10.
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 12.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Assumption AgreementNotes subject to such assignment, 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. 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 assignee in an amount equal to the Advances and/or Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained Advances or Commitments hereunder, a new Note to the order of the assigning Lender in an amount equal to the Advances and/or Commitments 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 unless it is entered date of such Assignment and Acceptance and shall otherwise be substantially in the form of Exhibit C.
(e) Each Lender may sell participations 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 held by it); provided that
(i) such Lender's obligations under this Agreement (including 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, and
(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.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 12.07, 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 received by it from such Lender.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including 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.
(h) The Borrower shall maintain, or cause to be maintained, a register (the "Registered Note Register") (which, at the request of the Borrower, shall be kept by the Administrative Agent on behalf of the Borrower at no extra charge to the Borrower at the address to which notices to the Administrative Agent are to be send hereunder) on which it enters the name of the registered owner of each of the Loans evidenced by a Registered Note. Notwithstanding anything to the contrary contained in this Section 12.07(h), a Registered 143 Note and the Loans evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Registered Note and the Loans evidenced thereby on the Registered Note Register (and each Registered Note shall expressly so provide). Any assignment or transfer of all or part of such Loans and the Registered Note evidencing the same shall be registered on the Registered Note Register only upon surrender for registration of assignment or transfer of the Registered Note evidencing such Loans, duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the registered noteholder thereof, and thereupon 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 due coursepresentment for registration of transfer of any Registered Note, the Borrower and the Administrative Agent shall treat the Person in whose name such Loans and the Registered Note(s) evidencing the same are registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding any notice to the contrary. The Registered Note Register shall be available for inspection by the Borrower and any Lender at any reasonable time upon reasonable prior notice.
Appears in 1 contract
Sources: Loan Agreement (Omnipoint Corp \De\)
Assignments and Participations. (a) Each Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
, 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 the prior consent of the Administrative Agent, the Swing Loan Lender and each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and Acceptance, together with any Revolving Credit Note (if the assigning Lender’s Loans are evidenced by a Revolving Credit Note) subject to such assignment. In addition, any Lender or Eligible Assignee assuming a Revolving Credit Commitment in connection with a Revolving Credit Facility Increase shall execute an Assumption Agreement in accordance with Section 2.18. Upon such execution, delivery, acceptance and recording of any Assignment and Acceptance or Assumption Agreement, as the case may be, and, other than in the Register respect of assignment made pursuant to Section 2.16 and Section 10.1(c), the receipt by the Administrative Agent from the assignee of an assignment assignment/assumption fee in the amount of $3,500 (other than with only one such fee payable in the case of an assignment by a Lender connection with simultaneous assignments to an Affiliate of such Lender or by any Agent two or their respective Affiliates) more separate Approved Funds), then from and after the effective date specified in such Assignment and AcceptanceAcceptance or Assumption Agreement, as the case may be, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and AcceptanceAcceptance or assumed by such assuming party pursuant to such Assumption Agreement, have the rights and obligations of a Lender, and and, in the case of an assignment, if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder under an Assignment and Acceptance shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those which survive surviving the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 10.8 a copy of each Assignment and Acceptance and each Assumption Agreement delivered to and accepted by it and a register for the recording of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of and principal amount of and accrued and unpaid interest on the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or 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 Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, Agent and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and Administrative Borrower, the Facility Agents 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 Loans (including the Revolving Credit Notes evidencing such Loans) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Loans shall be transferable only upon notation of such transfer in the Register. No A Revolving Credit Note shall only evidence the Lender’s or an assignee’s right, title and interest in and to the related Loan, Swing Loanand in no event is any such Revolving Credit Note to be considered a bearer instrument or obligation. This Section 10.2 shall be construed so that the Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), Letter 871(h)(2) and 881(c)(2) of Credit Obligationthe Code or such regulations. Solely for purposes of this and for tax purposes only, Reimbursement Obligationthe Administrative Agent shall act as the Borrowers’ 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 and an assignee or an Assumption Agreement executed by the Administrative Borrower and a Lender or an Eligible Assignee, nor any the Administrative Agent shall, if such Assignment and Acceptance or Assumption Agreement has been completed, (i) accept such Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered (ii) record the information contained therein in the Register and (iii) in due coursethe case of an Assignment and Acceptance, give prompt notice thereof to the Administrative Borrower. Within five Business Days after its receipt of such notice, the Borrowers at their own expense, shall, if requested by such assignee, execute and deliver to the Administrative Agent, new Revolving Credit Notes to the order of such assignee in an amount equal to the Revolving Credit Commitments assumed by it pursuant to such Assignment and Acceptance or Assumption Agreement and, if the assigning Lender, in the case of an Assignment and Acceptance, has surrendered any Revolving Credit Note for exchange in connection with the assignment and has retained Revolving Credit Commitments hereunder, new Revolving Credit Notes to the order of the assigning Lender in an amount equal to the Revolving Credit Commitments retained by it hereunder. Such new Revolving Credit Notes shall be dated the same date as the surrendered Revolving Credit Notes and be in substantially the form of Exhibit C.
(f) In addition to the other assignment rights provided in this Section 10.2, each Lender may collaterally 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 Loans), to (x) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrowers or (y) in the case of any Lender that is a Fund, any holders of obligations owed or Securities issued by such Lender as security for such obligations or Securities or any trustee for, or other representative of, such holders, and this Section 10.1 shall not apply to any such pledge or grant of a security interest; provided, however, that no such assignment shall release the assigning Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(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 Revolving Loans and Letters of Credit). 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 any Loan Party 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 Loan Parties), 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. 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 Agreement, and (z) 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. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each participant and the principal amounts (and accrued and unpaid interest) of each participant’s interest in the Loans or Letters of Credit held by it (the “Participant Register”). 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 Loan or other obligation hereunder and as the owner thereof for all purposes of this Agreement notwithstanding any notice to the contrary. Each participant shall be entitled to the benefits of Section 2.14 and Section 2.15 and of Section 2.13(c) as if it were a Lender; provided, however, that anything herein to the contrary notwithstanding, the Borrowers shall not, at any time, be obligated to make any payment under Section 2.14, Section 2.15 or Section 2.13(c) to the participant in the rights and obligations of any Lender (together with such Lender) in excess of the amount the Borrowers would have been obligated to pay to such Lender in respect of such interest had such participation not been sold unless the sale of the participation is made with the Administrative Borrower’s prior written consent or the right to a greater payment results from a change in law (including any statute, treaty or regulation) after such participant becomes a participant.
(h) Any Issuer may at any time assign its rights and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the Administrative Borrower, the Administrative Agent, such Issuer and such Eligible Assignee. If any Issuer ceases to be a Lender hereunder by virtue of any assignment made pursuant to this Section 10.2, then, as of the effective date of such cessation, such Issuer’s obligations to Issue Letters of Credit pursuant to Section 2.4 shall terminate and such Issuer shall be an Issuer hereunder only with respect to outstanding Letters of Credit issued prior to such date.
Appears in 1 contract
Sources: Amendment Agreement (Tousa Inc)
Assignments and Participations. (a) Each Lender The 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, except that the Borrower may sellnot assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Bank then committed to make advances or extend letters of credit to it (other than an assignment effectuated by a merger or consolidation permitted by Section 5.2(e) to the surviving Person referred to herein). No Bank may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of this Section, transfer(ii) by way of participation in accordance with the provisions of subsection (d) of this Section, negotiate or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) or (h) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Bank may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving Loans, the Swing Loans Commitment and the Letters of CreditAdvances at the time owing to it); provided, however, that:
provided that (i) if any such except in the case of an assignment shall be of the entire remaining amount of the assigning LenderBank’s Revolving Credit Outstandings Commitment and Revolving Credit Commitmentthe Advances at the time owing to it, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant of the Commitment (which for this purpose includes Advances outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Advances of the assigning Bank subject to each such assignment (assignment, determined as of the date of the Assignment and Acceptance Assumption with respect to such assignmentassignment is delivered to the Administrative Agent (or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall in no event (if less than the Assignor’s entire interest) not be less than $5,000,000 10,000,000 (or an integral multiple of $1,000,000 in excess thereofits remaining commitments, except (Iif less) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent unless each of the Administrative Agent, each Swingline Lender and each L/C Issuer and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consent (which consents shall each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and provided, further, that, notwithstanding any other provision of obligations under this Section 11.2, Agreement with respect to the consent of Advances or the Borrower shall not be required for Commitment assigned; (iii) any assignment occurring when any Event of Default shall have occurred a Commitment must be approved by the Administrative Agent and each L/C Issuer, in each case (1) such approval not to be continuing.
unreasonably withheld, delayed or conditioned and (b2) The unless the Person that is the proposed assignee is itself a Bank or an Affiliate of a Bank (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties to each assignment shall (1) execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Agent an Assignment and Acceptance. Upon such executionAssumption or (2) to the extent applicable, delivery, acceptance an agreement incorporating an Assignment and recording in the Register and the receipt Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent from and the assignee of an assignment parties to the Assignment and Assumption are participants, together with a processing and recordation fee in the amount of $3,500 and the Eligible Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an administrative questionnaire and shall deliver to the Borrower, all relevant information for notices under the Loan Documents to such assignee. Subject to the foregoing clauses (other than in b)(i) through (b)(iv), the case of an Administrative Agent shall record such assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) and, from and after the effective date specified in such each Assignment and AcceptanceAssumption, (i) the assignee Eligible Assignee thereunder shall become be a party hereto to this Agreement and, to the extent that rights and obligations under of the Loan Documents have been interest assigned to such assignee pursuant to by such Assignment and AcceptanceAssumption, have the rights and obligations of a LenderBank under this Agreement, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor assigning Bank thereunder shall, to the extent that rights and obligations under this Agreement have been of the interest assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or of the remaining portion of an assigning LenderBank’s rights and obligations under the Loan Documentsthis Agreement, such Lender Bank shall cease to be a party heretohereto but shall continue to be entitled to the benefits of Sections 2.11, 2.14, and 8.4 with respect to facts and circumstances occurring while such Person was a Bank prior to the effective date of such assignment). Upon written request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Bank. Any assignment or transfer by a Bank of rights or obligations under this Agreement that does not comply with this subsection (b) shall be null and void.
(c) The Administrative Agent Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its address referred to in Section 11.8 the Payment Office a copy of each Assignment and Acceptance Assumption delivered to and accepted or otherwise recorded by it and it. The Administrative Agent shall maintain a register for the recording recordation of the names and addresses of the Lenders Banks and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount amounts of the Revolving LoansAdvances and L/C Obligations owing to, Swing Loans and Letter of Credit Obligations (specifying each Bank pursuant to the Reimbursement Obligations) owing to each Lender and each Issuer terms hereof from time to time (the “Revolving Credit Facility Register” or the each, a “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposesconclusive, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, the Lenders Agent and the Issuers Banks shall treat each Person whose name is recorded in a Register pursuant to the Revolving Credit Facility Register terms hereof as a Lender or as an Issuer, as the case may be, Bank hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Revolving Credit Facility Each Register shall be available for inspection by the Borrower and the Facility Agents any Bank, at any reasonable time and from time to time upon reasonable prior notice.
(d) Any Bank may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Bank’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Advances (including such Bank’s participations in L/C Obligations) and stated interest owing to it); provided 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 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. No Revolving LoanAny agreement or instrument pursuant to which a Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce, Swing Loanand to participate in any related decision to enforce, Letter this Agreement and to approve any amendment, modification or waiver of Credit Obligationany provision of this Agreement; provided that such agreement or instrument may provide that such Bank will not, Reimbursement Obligationwithout the consent of the Participant, nor agree to any Assignment and Acceptance amendment, waiver or Assumption Agreementother modification described in clause (b), (c), or (d) of the first proviso to Section 8.1 that directly affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be effective unless entitled to the benefits of Sections 2.11, 2.14, and 8.4(b) if it is entered actually incurs any loss or expense pursuant to such sections, and then, solely to the same extent as if it were the Bank from which it had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.5(b) as though it were a Bank, provided such Participant agrees to be subject to Section 2.15 as though it were a Bank. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in due courseany commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) A Participant shall not be entitled to receive any greater payment under Section 2.6, Section 2.7, Section 2.11, Section 2.14 or Section 8.4(b) than the applicable Bank would have been entitled to receive with respect to the participation sold to such Participant, unless the Borrower shall expressly agree otherwise in writing. A Participant that would be a Foreign Bank if it were a Bank shall not be entitled to the benefits of Section 2.14 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 Sections 2.14, 2.15 and 8.18 as though it were a Bank.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Bank to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledgee or assignee for such Bank as a party hereto.
(g) As used herein, the following terms have the following meanings:
Appears in 1 contract
Assignments and Participations. (a) Each Lender may 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 Revolving Credit Loans, the Swing Loans and the Letters of Credit); providedPROVIDED, howeverHOWEVER, that:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s 's Revolving Credit Outstandings and Revolving Credit Commitment;
, (ii) the aggregate amount 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 (if less than the Assignor’s 's entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
, 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 the prior consent of the Administrative Agent, each Issuer Agent and the Borrower (which consents consent shall not be unreasonably withheld or delayed); and providedPROVIDED, furtherHOWEVER, that, that notwithstanding any other provision of this Section SECTION 11.2, the consent of the Borrower shall not be required for any assignment occurring which occurs when any Event of Default shall have occurred and be continuing.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and Acceptance, together with any Revolving Credit Note (if the assigning Lender's Loans are evidenced by a Revolving Credit Note) subject to such assignment. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 SECTION 11.3 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”"REGISTER"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and Borrower, the Facility Agents Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreementexecuted by an assigning Lender and an assignee, shall be effective unless it is entered 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 the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall, if requested by such assignee, execute and deliver to the Administrative Agent, new Revolving Credit Notes to the order of such assignee in due coursean amount equal to the Revolving Credit Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Revolving Credit Note for exchange in connection with the assignment and has retained Revolving Credit Commitments hereunder, new Revolving Credit Notes to the order of the assigning Lender in an amount equal to the Revolving Credit Commitments retained by it hereunder. Such new Revolving Credit Notes shall be dated the same date as the surrendered Revolving Credit Notes and be in substantially the form of EXHIBIT B.
(e) In addition to the other assignment rights provided in this SECTION 11.2, each Lender may assign, as collateral or otherwise, any of its rights under this Agreement (including rights to payments of principal or interest on the Loans) to (i) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrower or the Administrative Agent and (ii) any trustee for the benefit of the holders of such Lender's Securities; PROVIDED, HOWEVER, that no such assignment shall release the assigning Lender from any of its obligations hereunder.
(f) 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 Revolving Credit Loans and Letters of Credit). 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 any Loan Party therefrom, or to the exercising or refraining from exercising any powers or rights which such Lender may have under or in respect of the Loan Documents (including the right to enforce the obligations of the Loan Parties), except if any such amendment, waiver or other modification or consent would (i) 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 (ii) result in the release of all or substantially all of the Collateral other than in accordance with SECTION 10.7(B). In the event of the sale of any participation by any Lender, (A) such Lender's obligations under the Loan Documents shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties for the performance of such obligations, (C) such Lender shall remain the holder of such Obligations for all purposes of this Agreement, and (D) 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. Each participant shall be entitled to the benefits of SECTIONS 2.14(D), 2.15 and 2.16 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 pay to any participant of any interest of any Lender, under SECTION 2.13, 2.14(D), 2.13 or 2.15, any sum in excess of the sum which the Borrower would have been obligated to pay to such Lender in respect of such interest had such participation not been sold.
(g) Any Issuer may at any time assign its rights and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the Borrower, the Administrative Agent, such Issuer and such Lender. If any Issuer ceases to be a Lender hereunder by virtue of any assignment made pursuant to this SECTION 11.2, then, as of the effective date of such cessation, such Issuer's obligations to issue Letters of Credit pursuant to SECTION 2.04 shall terminate and such Issuer shall be an Issuer hereunder only with respect to outstanding Letters of Credit issued prior to such date.
Appears in 1 contract
Assignments and Participations. 144
(a) 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 and their respective successors and assigns; provided, 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 the Administrative Agent and any such assignment without the Lenders’ and the Administrative Agent’s prior written consent shall be null and void and no Lender may assign or transfer any of its rights hereunder or under the other Loan Documents except (i) to an assignee in accordance with the provisions of Section 12.07(b) and (ii) by way of participation in accordance with the provisions of Section 12.07(i).
(b) Each Lender may sellwith the written consent of the Administrative Agent, transfer, negotiate or assign to (i) one or more Eligible Assignees Transferees and (ii) if an Event of Default under Sections 9.01(a), (f) or (g) has occurred and is continuing, one or more Ineligible Institutions, in each case, all or a portion of its rights and obligations hereunder (including all of its rights and obligations under this Agreement with respect to all or a portion of its Term Loan Commitment and any portion of the Revolving Loans, Term Loans made by it (provided that assignments to Affiliated Lenders shall not require the Swing Loans and consent of the Letters of CreditAdministrative Agent); provided, however, that:
that (i) if any such assignment under clause (i) above shall be require the prior consent of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentAdministrative Borrower (which consent shall not be unreasonably withheld, conditioned or delayed nor shall it be required during the existence of an Event of Default), (ii) such assignment shall cover is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the same percentage remainder of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
) (iiexcept such minimum amount shall not apply to an assignment by a Lender to (x) a Lender, 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 being to be assigned pursuant to each all such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than new Lenders is at least $5,000,000 or an integral a multiple of $1,000,000 in excess thereof), except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the parties to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, each such assignment shall be subject execute and deliver to each Agent, an Assignment and Acceptance, and such parties shall deliver to the prior consent Administrative Agent, for the benefit of the Administrative Agent, each Issuer a processing and recordation fee of $5,000 (provided that the Borrower Administrative Agent, in its sole discretion, may elect to waive or reduce such processing and recordation fee), (iv) any such assignment shall require the consent of the Administrative Agent (which consents consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the that no written consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) The parties to each assignment shall execute and deliver to the Administrative Collateral Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from or the assignee of an assignment fee Administrative Borrower shall be required (1) in the amount of $3,500 (other than in the case of an connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (2) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender and (v) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax forms required by any Agent or their respective Affiliates) Section 2.08 and an Administrative Questionnaire. Upon such execution, delivery and acceptance, from and after the effective date specified in such each Assignment and AcceptanceAcceptance and recordation in the Register, (iA) the assignee thereunder shall become a party hereto “Lender” hereunder and, in addition to the extent that rights and obligations under the Loan Documents have been assigned hereunder held by it immediately prior to such assignee pursuant to such Assignment and Acceptanceeffective date, have the rights and obligations of a Lender, hereunder that have been assigned to it pursuant to such Assignment and if such Lender were an Issuer, of such Issuer hereunder and thereunder, Acceptance and (iiB) the assignor assigning Lender thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender▇▇▇▇▇▇’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto)) Notwithstanding the foregoing or anything to the contrary set forth herein, no assignment shall be made at any time to any Defaulting Lender or any of its Subsidiaries or Affiliates, or any Person who, upon becoming a Lender would constitute a Defaulting Lender.
(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 Administrative Agent shall maintain shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at one of its address referred to offices in Section 11.8 the United States, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recording recordation of the names and addresses of the Lenders and the IssuersCommitments of, and the Revolving Credit Commitments of and principal amount of the Revolving Loans (and stated interest thereon) (the “Registered Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations”) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”)time. The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrowers, the Administrative Agent, Agents and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Administrative Borrower and the Facility Agents any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(e) Upon receipt by the Administrative Agent of Credit Obligation, Reimbursement Obligation, nor any a completed Assignment and Acceptance and the processing and recordation fee (if applicable) and other items required to be delivered to the Administrative Agent Section 12.07(b), and subject to any consent required from the Administrative Agent pursuant to Section 12.07(b) (which consent of the Administrative Agent must be evidenced by the Administrative Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, 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 Assumption sold in whole or in part only by registration of such assignment or sale on 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. 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 on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(g) 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.
(h) Any Non-U.S. Lender 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 (x) one or more Eligible Transferees and (y) if an Event of Default under Sections 9.01(a), (f) or (g) has occurred and is continuing, one or more Ineligible Institutions, in each case, 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 and that any such participant shall not be entitled to receive any greater payment or benefit hereunder than such Lender would have been entitled to receive with respect to the participation sold to such participant unless the sale of such participation is made with the Administrative Borrower’s prior written consent; (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 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 effective unless entitled to the benefits of Section 2.08, subject to the obligations and limitations set forth thereunder; provided that the Administrative Borrower shall be notified of such participation and such participant shall agree, for the benefit of the Borrowers, to comply with Section 2.08(d) of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it is entered was a Lender.
(j) Any Lender may at any time pledge or assign a security interest in all or any 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 or loans made to, or other indebtedness issued by, such Lender pursuant to a securitization transaction (including any structured warehouse credit facility, collateralized loan obligation transaction or similar facility or transaction, and including any further securitization of the Register indebtedness or equity issued under such a transaction) (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect a Securitization, including, without limitation, by providing such information as may be reasonably requested by such Lender in due courseconnection with the rating of its Loans or any Securitization.
Appears in 1 contract
Assignments and Participations. (a) The Companies may not assign or transfer any of their rights under this Financing Agreement, the Promissory Notes or the other Loan Documents without the prior written consent of the Agents and the Lenders, and any such assignment or transfer without the Agents and the Lenders' prior written consent shall be null and void.
(b) Each Lender may 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 Revolving Term Loans, the Swing Revolving Loans and the Letters of CreditL/C Participations); provided, however, that:
that (i) if any such assignment shall be of the assigning Lender’s 's Revolving Loans or Revolving Credit Outstandings and Revolving Credit CommitmentCommitment or any related L/C Participation, such assignment shall cover the same percentage of such Lender’s 's Revolving Credit Outstandings Loans and Revolving Credit Commitment;
Commitment and L/C Participations, (ii) the aggregate amount 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 (if less than the Assignor’s assigning Lender's entire interest) be less than $5,000,000 or an integral multiple and, unless such assigning Lender is assigning its entire interest, the aggregate amount retained by any such assigning Lender (determined as of such date) shall in no event be less than $1,000,000 5,000,000, except, in excess thereofeither case, except (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
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 the prior consent of the Administrative Agent, each Issuer Agent and the Borrower Issuing Bank (which consents 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.
(bc) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and AcceptanceTransfer Agreement, together with any Promissory Note (if the assigning Lender's Loans are evidenced by a Promissory Note) subject to such assignment, and if any Revolving Loan or Revolving Credit Commitment is involved, shall at the same 107 time deliver a copy to the Issuing Bank. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 1,000 (other than in subject to any consents required pursuant to the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) preceding subparagraph), from and after the effective date specified in such Assignment and AcceptanceTransfer Agreement, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and AcceptanceTransfer Agreement, have the rights and obligations of a Lender, Lender and if such Lender were an Issuer, of such Issuer hereunder and thereunder, L/C Participant and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Financing Agreement have been assigned by it pursuant to such Assignment and AcceptanceTransfer Agreement, relinquish its rights (except those which that survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance Transfer Agreement covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(cd) The Administrative Agent shall maintain at its address referred to in Section 11.8 Paragraph 14.6 a copy of each Assignment and Acceptance Transfer Agreement delivered to and accepted by it and a register for the recording of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of and principal amount of the Loans and, where applicable, Revolving Loans, Swing Loans and Letter Credit Percentage of Credit L/C Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or "). Any assignment pursuant to this Paragraph 14.13(d) shall not be effective until such assignment is recorded in the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, purposes absent manifest error, and each party to any of the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall Documents may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, such for all purposes of this Financing Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and Companies, the Facility Agents Guarantors, the Agents, the Issuing Bank or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Notwithstanding anything to the contrary contained in the preceding subparagraph of this Paragraph 14.13, the Loans (including the Promissory Notes evidencing the Loans) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to the Loans shall be transferable only upon notation of such transfer in the Register. No Revolving A Promissory Note shall only evidence a Lender's or an assignee's right title and interest in and to the related Loan, Swing Loanand in no event is any such Promissory Note to be considered a bearer instrument or obligation. This Paragraph 14.13 shall be construed so that the Loans are at all times maintained in "registered form" within the meaning of Sections 163(f), Letter 871(h)(2) and 881(c)(2) of Credit Obligationthe Code and any related regulations (or any successor provisions of the Code or such regulations). Solely for purposes of this Paragraph and for tax purposes only, Reimbursement Obligationthe Administrative Agent shall act as the Companies' agent for purposes of maintaining such notations of transfer in the Register.
(f) Upon its receipt of an Assignment and Transfer Agreement executed by an assigning Lender and an assignee, nor the Administrative Agent shall, if such Assignment and Transfer Agreement has been completed, and subject to any consents required pursuant to subparagraph (b) of this Paragraph 14.13, (i) accept such Assignment and Transfer Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Harvard (for it to give to the other Companies). Within five (5) Business Days after its receipt of such notice, the Companies, at their own expense, shall, if 108 requested by such assignee, execute and deliver to the Administrative Agent, new Promissory Notes to the order of such assignee in an amount equal to the Term Loans assigned to it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Promissory Note for exchange in connection with the assignment and has retained Term Loans hereunder, new Promissory Notes to the order of the assigning Lender in an amount equal to the Term Loans retained by it hereunder. Such new Promissory Notes shall be dated the same date as the surrendered Promissory Notes and be in substantially the form of Exhibit B or Assumption Exhibit C, as applicable.
(g) In addition to the other assignment rights provided in this Paragraph 14.13, each Lender may assign, as collateral or otherwise, any of its rights under this Agreement (including rights to payments of principal or interest on the Loans) to (i) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Companies or the Administrative Agent or the Issuing Bank and (ii) any trustee for the benefit of the holders of such Lender's securities; provided, however, that no such assignment shall release the assigning Lender from any of its obligations hereunder.
(h) 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. 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 any party to a Loan Document, 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 parties to the Loan Documents), except if any such amendment, waiver or other modification or consent would (i) 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 (ii) result in the release of all or substantially all of the Collateral. In the event of the sale of any participation by any Lender, (A) such Lender's obligations under the Loan Documents shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties for the performance of such obligations, (C) such Lender shall remain the holder of such Obligations for all purposes of this Financing Agreement and other relevant Loan Documents and (D) the Obligors, the Administrative Agent and the other Lenders and the Issuing Bank shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Financing Agreement and other relevant Loan Documents. Each participant shall be entitled to the benefits of Paragraph 10.11, Paragraph 10.13 and Paragraph 10.14 as if it were a Lender; provided, however, that anything herein to the contrary notwithstanding, the Companies shall not, at any time, be obligated to make under Paragraph 10.11, Paragraph 10.13 and Paragraph 10.14 to the participants in the rights and obligations of any Lender (together with such Lender) any payment in excess of the amount the Companies would have been obligated to pay to such Lender in respect of such interest had such participation not been sold.
(i) The Obligors authorize each Lender to disclose to any participant or purchasing lender (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligors which has been delivered to such Lender by or on behalf of an Obligor pursuant to this Financing Agreement or which has been delivered to such Lender by or on behalf of an Obligor in connection with such Lender's credit evaluation of an Obligor prior to entering into this Financing Agreement, shall be effective unless provided that such Transferee agrees in writing to hold such information, to the extent it is entered marked confidential, in confidence. 109
(j) Notwithstanding any of the Register foregoing in due coursethis Paragraph 14.13, the Obligors shall, if necessary, execute any documents reasonably required to effectuate an assignment or transfer by a Lender contemplated by this Paragraph 14.13, including, without limitation, amendments to the Financing Agreement, the Promissory Notes or any other Loan Document, as the Administrative Agent shall reasonably deem necessary to effect the foregoing.
Appears in 1 contract
Assignments and Participations. (a) Each Lender Lender, with the consent of the Borrower (which consent shall not be unreasonably withheld), may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCommitments, the Swing Loans Advances owing to it and the Letters of Credit); Note or Notes held by it): provided, however, that:
that (i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a constant, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings all rights and Revolving Credit Commitment;
obligations in respect of the Facilities under this Agreement, (ii) except in the aggregate case of (A) an assignment to a Person that immediately prior to such assignment was a Lender or (B) an assignment of all of the remaining rights and obligations of such assigning Lender under this Agreement, the amount of the Commitment of the assigning Lender Party 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or 5,000,000, and shall be an integral multiple of $1,000,000 in excess thereof, except (Iiii) with the consent of the Borrower and the Administrative Agent or assigning Lender shall, immediately following such assignment (II) if unless such assignment is being made to a Lender or an Affiliate or Approved Fund of all the rights and obligations of such Lender; and
(iii) if assigning Lender under this Agreement, or is made concurrently, with another such Eligible Assignee is not, prior to assignment or other such assignments that in the date aggregate constitute all of the rights and obligations of such assignmentassigning Lender under this Agreement), retain a Lender or an Affiliate or Approved Fund Commitment of a Lenderat least $5,000,000 under this Agreement, (iv) each such assignment shall be subject to an Eligible Assignee, and (v) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance. , together with any Note or Notes subject to such assignment and a processing and recordation fee (the "Recordation Fee") of $2,500; and, provided further, that no consent of the Borrower shall be required for an assignment to any Bank or any Affiliate of any Bank.
(b) Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a LenderLender or Issuing Bank, and if such Lender were an Issueras the case may be, of such Issuer hereunder and thereunder, and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under the Loan Documentsthis Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(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: (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 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 Party 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 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 the Agents to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to each 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 or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Lender Parties and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer Party from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, the Lenders Agents and the Issuers shall Lender Parties may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, Party hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(e) Within five Business Days after its receipt of an Assignment and Acceptance executed by an assigning Lender Party 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. No Within five Business Days of 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 Revolving LoanCredit Commitment assumed by it pursuant to such Assignment and Acceptance and, Swing Loanif the assigning Lender Party has retained a Revolving Credit Commitment hereunder, a new Note to the order of the assigning Lender Party in an amount equal to the Revolving Credit 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 with the consent of the Borrower (such consent not to be unreasonably withheld) assign to one or more Eligible Assignee all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit ObligationCommitment at any time; provided, Reimbursement Obligationhowever, nor any 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 Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $2,500.
(g) Each Lender Party may sell participations to one or Assumption 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 Commitments, the Advances owing to it and the Note or Notes held by it); provided, however, that (i) such Lender Party's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) 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, and (iv) the Borrower, the Agents and the other Lender Parties shall be effective unless continue to deal solely and directly with such Lender Party in connection with such Lender Party's rights and obligations under this Agreement; and provided further that no Lender Party shall give any participant any right to determine or influence such Lender Party's vote pursuant to Section 8.01 of this Agreement, except with respect to such matters as are specified in clauses (c), (d) and (f) of such Section 8.01.
(h) Each Lender Party acknowledges that it is entered has obligations regarding preservation of the confidentiality of non-public information regarding the Borrower. Each Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the Register 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 that, prior to are 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 Party.
(i) Notwithstanding any other provision set forth in due coursethis Agreement, 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.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCommitment or Commitments, the Swing Loans Advances owing to it and the Letters of CreditNote or Notes held by it); provided, however, that:
that (i) if except in the 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 of any Lender, each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under and in respect of the assigning Lender’s Revolving Credit Outstandings Facility (determined as of the date the Assignment and Revolving Credit Commitment, Assumption with respect to such assignment shall cover is delivered to the same percentage Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
the Trade Date), (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, the aggregate amount of the Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than $5,000,000 1,000,000 (or such lesser amount as shall be approved by the Administrative Agent) under the Facility, (iii) 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 integral multiple Approved Fund of $1,000,000 any Lender, such assignment shall be approved by the Administrative Agent, (iv) each such assignment shall be to an Eligible Assignee, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Loan Parties pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either one or more Loan Parties or one or more Eligible Assignees in excess thereof, except (I) with an aggregate amount at least equal to the consent aggregate outstanding principal amount of the Borrower 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) except in the Administrative Agent or (II) if case of any such assignment is being made by a Lender to a Lender Lender, or an Affiliate or Approved Fund of such Lender; and
(iii) if , no 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 assignments shall be subject to permitted without the prior consent of the Administrative Agent, each Issuer and Agent until the Borrower (which consents Administrative Agent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, have notified the consent Lenders that syndication of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred Commitments hereunder has been completed and be continuing.
(bvii) The the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance. Upon , together with any Note or Notes subject to such execution, delivery, acceptance assignment and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than except in the case of an any such assignment by a Lender to an Affiliate or Approved Fund of such Lender) a processing and recordation fee of $3,500; provided, however, that for each such assignment made as a result of a demand by the Loan Parties pursuant to this Section 9.07(a), the Loan Parties shall pay to the Administrative Agent the applicable processing and recordation fee. Notwithstanding anything contained to the contrary in this Section 9.07(a), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or by any an Approved Fund of such Lender without delivering an Assignment and Acceptance to Administrative Agent (a “Related Party Assignment”); provided, that, (1) Borrower, Guarantors and Agents may continue to deal solely and directly with such assigning Lender until an Assignment and Acceptance has been delivered to the Administrative Agent for recordation on the Register, (2) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Administrative Agent shall not affect the legality, validity, or their respective Affiliatesbinding effect of such assignment, and (3) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender or an Approved Fund of such Lender shall be effective as of the date specified in such Assignment and Acceptance.
(b) Upon such execution, delivery, acceptance, if required, and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive other than its rights under Sections 2.10, 2.12 and 9.04 to the payment in full of the Obligationsextent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis 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: (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 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 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 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 Agent, acting for this purpose (but only for this purpose) as agent of the Borrower, shall maintain at its address referred to in Section 11.8 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment under each Facility of, the Revolving Credit Commitments of and principal amount of the Revolving Advances (the “Registered Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations”) owing to under each Facility to, each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, Agents and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register and the Related Party Register (as defined below) shall be available for inspection by the Borrower and the Facility Agents Loan Parties or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving LoanIn the case of a Related Party Assignment, Swing Loanthe Lender making such Related Party Assignment shall, Letter acting solely for this purpose as the non-fiduciary agent of Credit Obligationthe Borrower, Reimbursement Obligation, nor any maintain a comparable register (the “Related Party Register”).
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Assumption AgreementNotes (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 each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Note or Notes prior to such arrangement 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 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 Commitments, 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. The Borrower agrees that each participant shall be entitled to the benefits of Sections 2.10, 2.11, 2.12, 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 (b) of this Section. To the extent permitted by law, each participant also shall be entitled to the benefits of Section 9.05 as though it were a Lender, provided such participant agrees to be subject to Section 2.13 as though it were a Lender. A participant shall not be entitled to receive any greater payment under Sections 2.10 and 2.12 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 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 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 other lender or group of lenders that provide financing to such lender or any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(i) Notwithstanding anything to the contrary contained herein, any Lender that is entered a Fund may create a security interest in all or any portion of the Register 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 due coursecompliance 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 Loan Parties (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 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 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 Agreement, any SPC may (i) with notice to, but without prior consent o
Appears in 1 contract
Assignments and Participations. (a) Each Lender may 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 Line Loans and the Letters of Credit); provided, however, that:
(iA) if any such assignment shall be of the assigning Lender’s 's Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s 's Revolving Credit Outstandings and Revolving Credit CommitmentCommitment and (B) if any such assignment shall be of the assigning Lender's Term Loans and Term Loan Commitment (if any), such assignment shall cover the same percentage of such Lender's Term Loans and Term Loan Commitment (if any);
(ii) the aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event (if less than the Assignor’s 's entire interest) be less than (x) in the case of the Revolving Credit Facility, $5,000,000 or an integral multiple of $1,000,000 in excess thereof or (y) in the case of the Term Loan Facility, $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in any case, (IA) with the consent of the Borrower (not to be unreasonably withheld or delayed) and the applicable Administrative Agent or (IIB) 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 the prior consent of the applicable Administrative Agent, each Issuer Agent and the Borrower (which consents consent shall not be unreasonably withheld or delayed); and
(iv) any assignment of a Revolving Credit Commitment must be approved by the Revolving Credit Facility Administrative Agent, the L/C Issuer and the Swing Line Lender (each such consent not to be unreasonably withheld or delayed); provided, further, that, notwithstanding any other provision of this Section 11.211.07, the consent of the Borrower shall not be required (x) for any assignment occurring when any Event of Default shall have occurred and be continuing.continuing and (y) for any assignment by any Administrative Agent or any of their respective Affiliates made within 30 Business Days after the Closing Date. Any such assignment need not be ratable as among the Term Loan Facility 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 (as defined in clause (c) below)recording, an Assignment and AcceptanceAssumption, together with any Note (if the assigning Lender's Loans are evidenced by a Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording of any Assignment and Assumption and, other than in the Register respect of assignments made pursuant to Section 3.07 (Substitution of Lenders) and Section 11.01(c) (Amendments, Etc.), the receipt by the applicable Administrative Agent from the assignee (other than an assignee that is CNAI, Bank of America or any of their respective Affiliates) of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and AcceptanceAssumption (provided that in respect of multiple contemporaneous assignments by any Lender to its Approved Funds, such assignment fee shall be in an amount equal to $3,500 for the first such assignment to an Approved Fund of such Lender), (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender, and if such Lender were an L/C Issuer, of 126 such L/C Issuer hereunder and thereunder, (ii) the Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notation in the Register and (iiiii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except for those which survive surviving the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Each Administrative Agent shall maintain at its address referred to in Section 11.8 11.02 (Notices, Etc.) a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for shall record in the recording of applicable Register the names and addresses of the Lenders and the IssuersL/C Issuer, as applicable, and the Revolving Credit Commitments of and principal amount of the Loans and L/C Obligations, as applicable, owing to each such Lender from time to time and the Commitments of each Lender. Any assignment pursuant to this Section 11.07 shall not be effective until such assignment is recorded in the Register.
(d) Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee, the Administrative Agent shall, if such Assignment and Assumption has been completed, (i) accept such Assignment and Assumption, (ii) record, or cause to be recorded, the information contained therein in the applicable 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, if requested by such assignee, execute and deliver to the applicable Administrative Agent new Notes to the order of such assignee in an amount equal to the Commitments and Credit Extensions assumed by such assignee pursuant to such Assignment and Assumption and, if the assigning Lender has surrendered any Note for exchange in connection with the assignment and has retained Commitments or Credit Extensions hereunder, new Notes to the order of the assigning Lender in an amount equal to the Commitments and Credit Extensions retained by it hereunder. Such new Notes shall be dated the same date as the surrendered Notes and be in substantially the form of Exhibit E-1 (Form of Revolving Note), Exhibit E-2 (Form of Term Loan Note) or Exhibit E-3 (Form of Swing Line Note), as applicable.
(e) In addition to the other assignment rights provided in this Section 11.07, each Lender may:
(i) grant to a Special Purpose Vehicle the option to make all or any part of any 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 Loans pursuant thereto shall satisfy (once and to the extent that such Loans are made) the obligation of such Lender to make such Loans thereunder, provided, however, that (x) nothing herein shall constitute a commitment or an offer to commit by such a Special Purpose Vehicle to make Loans hereunder and no such Special Purpose Vehicle shall be liable for any indemnity or other Obligation (other than the making of Loans for which such Special Purpose Vehicle shall have exercised an option, and then only in accordance with the relevant option agreement) and (y) such Lender's obligations under the Loan Documents shall remain unchanged, such Lender shall remain responsible to the other parties for the performance of its obligations under the terms of this Agreement and shall remain the holder of the Obligations for all purposes hereunder, and
(ii) assign or pledge, as collateral or otherwise, all or any portion of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Loans and Notes or any other instrument evidencing its rights as a Lender under this Agreement), to, without notice to or consent of the applicable Administrative Agent or the Borrower, (A) any Federal Reserve Bank (pursuant to Regulation A of the FRB), (B) any holder of, trustee for the benefit of, or any other representative of holders of, the holders of such Revolving Credit Lender's Securities and (C) any Special Purpose Vehicle to which such Revolving Credit Lender has granted an option pursuant to clause (i) above; provided, however, that no such assignment or grant shall release such Lender from any of its obligations hereunder except as expressly provided in clause (i) above and except, in the case of a subsequent foreclosure pursuant to an assignment as collateral, if such foreclosure is made in compliance with the other provisions of this Section 11.07 other than this clause (e) or clause (f) below. 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 (e) any bankruptcy, reorganization, insolvency or liquidation proceeding (such agreement shall survive the payment in full of the Obligations). The terms of the designation of, or assignment to, such Special Purpose Vehicle shall not restrict such Lender's ability to, or grant such Special Purpose Vehicle the right to, consent to any amendment or waiver to this Agreement or any other Loan Document or to the departure by the Borrower from any provision of this Agreement or any other Loan Document without the consent of such Special Purpose Vehicle except, as long as the Agents and the Lenders, the L/C Issuer and the other Secured Parties shall continue to, and shall be entitled to continue to, deal solely and directly with such Lender in connection with such Lender's obligations under this Agreement, to the extent any such consent would reduce the principal amount of, or the rate of interest on, any Obligations, amend clause (e) or postpone any scheduled date of payment of such principal or interest. Each Special Purpose Vehicle shall be entitled to the benefits of Section 3.01 (Taxes), 3.02 (Illegality) and Section 3.04(b) (Increased Cost and Reduced Return; Capital Adequacy) as if it were such Lender; provided, however, that anything herein to the contrary notwithstanding, no Borrower shall, at any time, be obligated to make under Section 3.01 (Taxes), 3.02 (Illegality) or Section 3.04(b) (Increased Cost and Reduced Return; Capital Adequacy) a to any such Special Purpose Vehicle and any such Lender any payment in excess of the amount the Borrower would have been obligated to pay to such Lender in respect of such interest if such Special Purpose Vehicle had not been assigned the rights of such Lender hereunder; and provided, further, that such Special Purpose Vehicle shall have no direct right to enforce any of the terms of this Agreement against the Borrower, the Agents or the other Lenders. In the case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of Borrower or the applicable Administrative Agent, collaterally assign or pledge all or any portion of its rights under this Agreement, including the Loans and Notes or any other instrument evidencing its rights as a Lender under this Agreement, to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued, by such fund, as security for such obligations or securities.
(f) 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 Term Loans, Revolving Loans, Swing Line Loans and Letter Letters of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”Credit). The entries terms of such participation shall not, in any event, require the Revolving Credit Facility Register shall be conclusive and binding for all purposesparticipant's consent to any amendments, absent manifest errorwaivers or other modifications of any provision of any Loan Documents, and the consent to any departure by any Loan Party 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 Loan Parties), except if any such amendment, waiver or other modification or consent would (i) reduce the Administrative Agentamount, or postpone any date fixed for, any amount (whether of principal, interest or fees) payable to such participant under the Lenders and the Issuers shall treat each Person whose name is recorded Loan Documents, to which such participant would otherwise be entitled under such participation or (ii) result in the Revolving Credit Facility Register as a Lender release of all or as an Issuer, as substantially all of the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered Collateral other than in the Register in due course.accordance with Section 10.08 (
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Assignments and Participations. (a) This Agreement and the Revolving Credit Notes shall be binding upon and inure to the benefit of the Companies and the Agent and each Lender and their respective successors and assigns (including, except for the right to request Revolving Loans, any trustee succeeding to the rights of either Company pursuant to Chapter 11 of the Bankruptcy Code or pursuant to any conversion to a case under Chapter 7 of the Bankruptcy Code); provided, however, that neither Company of the Borrower may assign or transfer any of its rights hereunder, or under the Revolving Credit Notes, without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
(b) Each Lender may sellmay, transferwith the written consent of the Agent, negotiate or assign to one or more Eligible Assignees other lenders or other entities all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to Revolving Credit Commitment, the Revolving Loans, the Swing Loans made by it and the Letters of CreditRevolving Credit Notes held by it); provided, however, that:
that (i) if any except in the case of assignments to Affiliates of a Lender in which case there are no minimums, such assignment shall be is in an amount which is at least $1,000,000 or a multiple of $100,000 in excess thereof (or the assigning remainder of such Lender’s Revolving Credit Outstandings and 's Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings ) and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant parties to each such assignment (determined as of the date of the Assignment and 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 an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)acceptance, an Assignment and Acceptance, together with any Revolving Credit Note subject to such assignment and, except in the case of assignments to Affiliates of a Lender, such parties shall deliver to the Agent a processing and recordation fee of $5,000. Upon such execution, deliverydelivery and acceptance, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such each Assignment and Acceptance, which effective date shall be at least three Business Days after the delivery thereof to the Agent (ior such shorter period as shall be agreed to by the Agent and the parties to such assignment), (A) the assignee thereunder shall become a party hereto "Lender" hereunder and, in addition to the extent that rights and obligations under the Loan Documents have been assigned hereunder held by it immediately prior to such assignee pursuant to such Assignment and Acceptanceeffective date, have the rights and obligations of a Lender, hereunder that have been assigned to it pursuant to such Assignment and if such Lender were an Issuer, of such Issuer hereunder and thereunder, Acceptance and (iiB) the assignor assigning Lender thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto).
(ci) 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: (A) 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; (B) the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Loan Parties or any of their Subsidiaries or the performance or observance by the Loan Parties of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto; (C) 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; (D) such assignee will, independently and without reliance upon the Assigning Lender, the 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; (E) 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 thereof, together with such powers as are reasonably incidental thereto; and (F) 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.
(ii) The Administrative Agent shall maintain maintain, or cause to be maintained at its address referred to in Section 11.8 the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of of, and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(iii) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreementexecuted by an assigning Lender and an assignee, shall be effective unless it is entered together with the Revolving Credit Notes subject to such assignment, the Agent shall, if the Agent consents to such assignment and if such Assignment and Acceptance has been completed (i) accept such Assignment and Acceptance, (ii) give prompt notice thereof to the Borrower, (iii) record the information contained therein in the Register in due courseRegister, and
(iv) prepare and distribute to each Lender and the Borrower a revised Schedule 1.01(C) hereto after giving effect to such assignment, which revised Schedule 1.01(C) shall replace the prior Schedule 1.01(C) and become part of this Agreement.
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Assignments and Participations. (a) Each Revolving Credit Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) if any such assignment shall be of the assigning Revolving Credit Lender’s 's Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Revolving Credit Lender’s 's Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignor’s assignor's entire interest) be less than $5,000,000 2,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed) and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
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 the prior consent of the Administrative Agent, each Issuer and the Borrower Agent (which consents 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.
(b) The Except as otherwise permitted in Section 11.2 (c), the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Revolving Credit Note (if the assigning Revolving Credit Lender's Loans are evidenced by a Revolving Credit FIRST LIEN CREDIT AGREEMENT TECUMSEH PRODUCTS COMPANY Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register of any Assignment and Acceptance and, other than in respect of assignments made pursuant to Section 2.17 (Substitution of Lenders) and Section 11.1(c) (Amendments, Waivers, Etc.), the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a LenderRevolving Credit Lender and, and if such Revolving Credit Lender were an Issuer, of such Issuer hereunder and thereunder, (ii) the Revolving Credit Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notation in the Register and (iiiii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those which survive surviving the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Revolving Credit Lender’s 's rights and obligations under the Loan Documents, such Revolving Credit Lender shall cease to be a party hereto).
(c) Notwithstanding anything contained in Section 11.2 to the contrary, a Lender may effect a Related Party Assignment without delivering an Assignment and Acceptance to the Administrative Agent for recordation in the Register and without payment of the assignment fee referred to in Section 11.2(b) and without delivering any tax forms (provided that should an assignee party to a Related Party Assignment that is not a Lender deliver an Assignment and Acceptance for recording, such assignee shall also deliver the applicable tax forms); provided that
(i) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such assigning Lender until such Assignment and Acceptance has been delivered to the Administrative Agent and promptly recorded in the Register in accordance with Section 11.2(d), (ii) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Administrative Agent shall not affect the legality, validity, or binding effect of such assignment, and (iii) an Assignment and Acceptance with respect to a Related Party Assignment shall be effective as of the date specified in such Assignment and Acceptance and recorded on the Related Party Register. The Borrower agrees that each assignee party to a Related Party Assignment shall be entitled to the benefits of Sections 2.14(d), 2.15 and 2.16 and to the same extent as any other Lender that delivers an Assignment and Acceptance to the Administrative Agent pursuant to this Section 11.2(c).
(d) The Administrative Agent shall maintain at its address referred to in Section 11.8 (Notices, Etc.) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for shall record in the recording of Register the names and addresses of the Lenders and Issuers and the Issuers, principal amount of the Loans and Reimbursement Obligations owing to each Lender from time to time and the Revolving Credit Commitments of and principal amount of the Revolving Loanseach Lender. Except for a Related Party Assignment, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing any assignment pursuant to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries this Section 11.2 shall not be effective until such assignment is recorded in the Revolving Credit Facility Register shall be conclusive Register. In the case of a Related Party Assignment as to which an Assignment and binding for all purposes, absent manifest error, and the Loan Parties, Acceptance is not delivered to the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register assigning Lender shall, acting solely for this purpose as a Lender or as an Issuernon-fiduciary agent of the Borrower, as maintain a register (the case may be, for all purposes "Related Party Register") comparable to the Register on behalf of this Agreementthe Borrower. The Revolving Credit Facility Any such Related Party Register shall be available for inspection by the Borrower Borrower, the Agents and the Facility Agents any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter 106 FIRST LIEN CREDIT AGREEMENT TECUMSEH PRODUCTS COMPANY
(e) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance executed by an assigning Revolving Credit Lender and an assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record or Assumption Agreement, shall cause to be effective unless it is entered recorded 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, if requested by such assignee, and provided any Revolving Credit Notes to the order of the assigning Revolving Credit Lender have been surrendered or an affidavit of loss certificate has been provided by such Lender, execute and deliver to the Administrative Agent, new Revolving Credit Notes to the order of such assignee in due coursean amount equal to the Revolving Credit Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Revolving Credit Lender has surrendered any Revolving Credit Note for exchange in connection with the assignment and has retained Revolving Credit Commitments hereunder, new Revolving Credit Notes to the order of the assigning Revolving Credit Lender in an amount equal to the Revolving Credit Commitments retained by it hereunder. Such new Revolving Credit Notes shall be dated the same date as the surrendered Revolving Credit Notes and be in substantially the form of Exhibit B (Form of Revolving Credit Note).
(f) In addition to the other assignment rights provided in this Section 11.2, each Revolving Credit Lender may do each of the following:
(i) grant to a Special Purpose Vehicle the option to make all or any part of any Loan that such Revolving Credit Lender would otherwise be required to make hereunder and the exercise of such option by any such Special Purpose Vehicle and the making of Loans pursuant thereto shall satisfy (once and to the extent that such Loans are made) the obligation of such Revolving Credit Lender to make such Loans thereunder, provided, however, that (x) nothing herein shall constitute a commitment or an offer to commit by such a Special Purpose Vehicle to make Loans hereunder and no such Special Purpose Vehicle shall be liable for any indemnity or other Obligation (other than the making of Loans for which such Special Purpose Vehicle shall have exercised an option, and then only in accordance with the relevant option agreement) and (y) such Lender's obligations under the Loan Documents shall remain unchanged, such Lender shall remain responsible to the other parties for the performance of its obligations under the terms of this Agreement and shall remain the holder of the Obligations for all purposes hereunder; 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 Loans), to (A) without notice to or consent of the Administrative Agent or the Borrower, any Federal Reserve Bank (pursuant to Regulation A of the Federal Reserve Board) and (B) without notice to or consent of the Administrative Agent or the Borrower, (1) any holder of, or trustee for the benefit of, the holders of such Revolving Credit Lender's Securities and (2) any Special Purpose Vehicle to which such Revolving Credit Lender has granted an option pursuant to clause (i) above; provided, however, that no such assignment or grant shall release such Revolving Credit Lender from any of its obligations hereunder except as expressly provided in clause (i) above and except, in the case of a subsequent foreclosure pursuant to an assignment as collateral, if such foreclosure is made in compliance with the other provisions of this Section 11.2 other than this clause (f) or 107 FIRST LIEN CREDIT AGREEMENT TECUMSEH PRODUCTS COMPANY clause (g) below. 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). The terms of the designation of, or assignment to, such Special Purpose Vehicle shall not restrict such Lender's ability to, or grant such Special Purpose Vehicle the right to, consent to any amendment or waiver to this Agreement or any other Loan Document or to the departure by the Borrower from any provision of this Agreement or any other Loan Document without the consent of such Special Purpose Vehicle except, as long as the Administrative Agent and the Lenders, Issuers and other Secured Parties shall continue to, and shall be entitled to continue to, deal solely and directly with such Lender in connection with such Lender's obligations under this Agreement, to the extent any such consent would reduce the principal amount of, or the rate of interest on, any Obligations, amend this clause (f) or postpone any scheduled date of payment of such principal or interest. Each Special Purpose Vehicle shall be entitled to the benefits of Sections 2.15 (Capital Adequacy) and 2.16 (Taxes) and of Section 2.14(d) (Illegality) as if it were such Lender; provided, however, that anything herein to the contrary notwithstanding, no Borrower shall, at any time, be obligated to make under Section 2.15 (Capital Adequacy), 2.16 (Taxes) or 2.14(d) (Illegality) to any such Special Purpose Vehicle and any such Lender any payment in excess of the amount the Borrower would have been obligated to pay to such Lender in respect of such interest if such Special Purpose Vehicle had not been assigned the rights of such Lender hereunder; and provided, further, that such Special Purpose Vehicle shall have no direct right to enforce any of the terms of this Agreement against the Borrower, the Administrative Agent or the other Lenders.
(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 Revolving Loans and Letters of Credit). 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 any Loan Party 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 Loan Parties), except if any such amendment, waiver or other modification or consent would (i) 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 (ii) result in the release of all or substantially all of the Collateral other than in accordance with Section 10.8(b) (Concerning the Collateral and the Collateral Documents). 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 Agreement and (z) 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. Each participant shall be entitled to the benefits of Sections 2.15 (Capital Adequacy) and 2.16 (Taxes) and of Section 2.14(d) (Illegality) 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 Section 2.15 (Capital Adequacy), 2.16 (Taxes) or 2.14(d) (Illegality) to the participants in the rights and obligations of any Lender (together with 108 FIRST LIEN CREDIT AGREEMENT TECUMSEH PRODUCTS COMPANY such Lender) any payment in excess of the amount the Borrower would have been obligated to pay to such Lender in respect of such interest had such participation not been sold and provided, further, that such participant in the rights and obligations of such Lender shall have no direct right to enforce any of the terms of this Agreement against the Borrower, the Administrative Agent or the other Lenders.
(h) In the event that any Lender sells participations in a Loan, such Lender shall maintain a register on which it enters the name of all participants in the Loans held by it (the "Participant Register"). A 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 Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. Any such Participant Register shall be available for inspection by the Borrower, Administrative Agent and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(i) Any Issuer may at any time assign its rights and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the Borrower, the Administrative Agent, such Issuer and such Lender, subject to the provisions of Section 2.7(c) (Evidence of Debt) relating to notations of transfer in the Register. If any Issuer ceases to be a Lender hereunder by virtue of any assignment made
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Assignments and Participations. (a) 11.12.1 Each Lender may sellassign, transfer, negotiate or assign to one or more Eligible Assignees Assignees, all or a portion of its rights and obligations hereunder under this Agreement (including without limitation all or a portion of its rights the Loans owing to it) and obligations with respect to the Revolving Loans, the Swing Loans and the Letters of Credit)other Loan Documents; provided, however, that:
that (i) if any each such assignment shall be of a constant, and not a varying, percentage of the assigning Lender’s Revolving Credit Outstandings 's rights and Revolving Credit Commitmentobligations under this Agreement and other Loan Documents, such and the assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
's Loans, (ii) unless Agent and Borrower otherwise consent (except that after an Event of Default only the consent of Agent shall be required), the aggregate amount of the Loans of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than Ten Million Dollars ($5,000,000 or 10,000,000) and shall be an integral multiple of One Million Dollars ($1,000,000 in excess thereof1,000,000), except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 after giving effect to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent aggregate amount of the Administrative Agent, each Issuer and Loans retained by the Borrower assigning Lender shall in no event be less than Twelve Million Dollars (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, $12,000,000) (iv) the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance approval and recording in the Register (as defined in clause (c) below)acceptance, an Assignment and AcceptanceAssumption, (v) if the assignment is made prior to an Event of Default, Borrower and Arranger shall each have approved the identity of the Eligible Assignee, such approval not to be unreasonably withheld and (vi) during any period when an Event of Default has occurred and is continuing, assignments to Persons that are not Eligible Assignees may be made, subject to the reasonable approval of the Arranger. Upon such execution, delivery, acceptance approval and recording in the Register acceptance, and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after upon the effective date specified in such the applicable Assignment and AcceptanceAssumption, (iX) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunderhereunder, and (iiY) the assignor assigning Lender thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of this Agreement.
11.12.2 By executing and delivering an Assignment and Acceptance covering all Assumption, the assigning Lender 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 or any other Loan Document or the remaining portion execution, legality, validity, enforceability, genuineness, sufficiency or value of an this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender’s rights Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the REIT or Borrower or the performance or observance by the REIT or Borrower 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 V or delivered pursuant to Article VI to the date of such assignment and such other Loan DocumentsDocuments 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 cease 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 party hereto)Lender.
(c) The Administrative 11.12.3 Agent shall maintain maintain, at its address referred to in Section 11.8 on the counterpart signature pages hereof, a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for shall record in the recording of Loan Account the names and addresses of the Lenders each Lender and the Issuers, the Revolving Credit Commitments of and principal amount of the Revolving LoansLoans owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each such Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”)time. The entries in the Revolving Credit Facility Register shall be conclusive Borrower, Agent and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register Loan Account as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement.
11.12.4 Upon its receipt of an Assignment and Assumption 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 in the Loan Account, and (iii) give prompt notice thereof to Borrower. The Revolving Credit Facility Register 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 Loans) reflecting such assignee's (and assigner'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 a portion of the Loans being assigned shall be available cancelled and returned to Borrower.
11.12.5 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 the Loans owing to it) and other Loan Documents; 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 inspection by the Borrower performance of such obligations, (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 voting rights under this Agreement except for voting rights with respect to (A) increases in the Facility; (B) extensions of the Termination Date; and (C) decreases in the interest rates described in this Agreement. No participant shall be entitled to vote on any matter until the Lender with which such participant is participating in the Facility Agents and the Loans confirms such participant's status as a participant hereunder.
11.12.6 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.
11.12.7 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 this Section 11.12, any Lender may at any reasonable time and from time to time upon reasonable prior noticepledge or assign all or any portion of its interest and rights under this Agreement (including all or any portion of its Note) to any of the twelve Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C. §341. No Revolving Loansuch pledge or the enforcement thereof shall release the pledgor Lender from its obligations hereunder or under any of the other Loan Documents.
11.12.8 Anything in this Agreement to the contrary notwithstanding, Swing Loanany Lender may assign all or any portion of its rights and obligations under this Agreement to another branch or Affiliate of such Lender, Letter provided that (i) at the time of Credit Obligationsuch assignment such Lender is not a Defaulting Lender, Reimbursement Obligation(ii) such Lender gives Agent and Borrower at least fifteen (15) days' prior written notice of any such assignment, nor any (iii) the parties to each such assignment execute and deliver to Agent an Assignment and Acceptance or Assumption AgreementAssumption, and (iv) Agent receives from assignor a processing fee of Three Thousand Dollars ($3,000).
11.12.9 No assignee of any rights and obligations under this Agreement shall be effective unless it is entered in the Register in due coursepermitted to subassign such rights and obligations.
11.12.10 No Lender shall be permitted to assign or sell all or any portion of its rights and obligations under this Agreement to Borrower or any Affiliate of Borrower.
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Assignments and Participations. (a) Borrower shall not have the right to assign or delegate their obligations and duties under this Agreement or any other Loan Documents or any interest therein except with the prior written consent of Agent and Lenders.
(b) Notwithstanding subsection (c) of this Section 10.12, nothing herein shall restrict, prevent or prohibit any Lender from (i) pledging or granting a security interest in 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 the Loans and/or commitments hereunder to its parent and/or to any Affiliate of such Lender or to any other existing Lender or Affiliate. 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 Borrowers.
(c) Each Lender may sellmay, transferwith the consent of Agent (such consent not to be unreasonably withheld or delayed) and (if no Event of Default is outstanding) with the consent of Borrowers (such consent not to be unreasonably withheld or delayed), negotiate or but without the consent of any other Lender, assign to one or more Eligible Assignees banks or other financial institutions all or a portion of its rights and obligations hereunder (including all of its rights and obligations with respect to the Revolving Loans, the Swing Loans under this Agreement and the Letters of Credit)Notes; provided, however, that:
provided that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant to for each such assignment (determined as of the date of the Assignment and 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 an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each assignment thereto shall execute and deliver to the Administrative Agent, for its acceptance (if properly completed and executed in accordance with the terms hereof) and recording in the Register (as defined in clause (c) below)its books and records, an Assignment Agreement, together with any Note or Notes subject to such assignment, (ii) no such assignment shall be for less than a Revolving Credit Pro Rata Share of $5,000,000 or, if less, the entire remaining Pro Rata Percentage of such Lender of the Loans, (iii) the assignor and Acceptanceassignee shall pay to Agent, as agreed between such assignor and assignee, a processing fee of $3,500. Upon such executionexecution and delivery of the Assignment Agreement to Agent, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the date specified as the effective date specified in such the Assignment and AcceptanceAgreement (the "Acceptance Date"), (ix) the assignee thereunder shall become be a party hereto hereto, and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and AcceptanceAgreement, such assignee shall have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and AcceptanceAgreement, relinquish its rights (except those other than any rights it may have pursuant to Section 10.4 which survive the payment in full of the Obligationswill survive) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance Agreement covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto).
(cd) The Administrative Within 5 Business Days after request by Agent, Borrower shall execute and deliver to Agent shall maintain at its address referred in exchange for any surrendered Note or Notes (which the assigning Lender agrees to in Section 11.8 promptly deliver to Borrower) a copy of each Assignment and Acceptance delivered new Note or Notes to and accepted by it and a register for the recording order of the names and addresses of the Lenders and the Issuers, assignee in an amount equal to the Revolving Credit Commitments Pro Rata Share assumed by it pursuant to such Assignment Agreement and, if the assigning Lender has retained a Revolving Credit Pro Rata Share hereunder, a new Note to the order of the assigning Lender in an amount equal to the Revolving Credit Pro Rata Share retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note, shall be dated the Closing Date and shall otherwise be in substantially the form of the Note subject to such assignment.
(e) Each Lender may 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, without limitation, all or a portion of its Revolving LoansCredit Pro Rata Share, Swing the Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, it and the Loan PartiesNote 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 Administrative Agentother parties hereto for the performance of such obligations, (iii) such Lender shall remain the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, holder of any such Note for all purposes of this Agreement. The Revolving , (iv) Borrowers, 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 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 principal or interest of any Loans or Reimbursement Obligations in which such participant is participating, (B) reduce the amount of any installment of principal of the Loans or Reimbursement Obligations in which such participant is participating, (C) except as otherwise expressly provided in this Agreement, reduce the interest rate applicable to the Loans or Reimbursement Obligations in which such participant is participating, or (D) except as otherwise expressly provided in this Credit Facility Register shall be available for inspection by Agreement, reduce any fees payable hereunder.
(f) Each Lender agrees that, without the prior written consent of Borrower and the Facility Agents at Agent, it will not make any reasonable time and from time to time upon reasonable prior notice. No Revolving assignment or sell a participation hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan, Swing LoanNote or other Obligation under the securities laws of the United States of America or of any jurisdiction.
(g) In connection with the efforts of any Lender to assign its rights or obligations or to participate interests, Letter of Credit ObligationAgent or such Lender may disclose any information in its possession regarding Borrower, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due coursetheir finances and/or Property.
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Assignments and Participations. (a) Each Revolving Credit Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) if any such assignment shall be of the assigning Revolving Credit Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Revolving Credit Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignorassignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
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 the prior consent of the Administrative Agent, the Borrower and each Issuer and the Borrower (which consents consent of the Borrower, the Administrative Agent and each Issuer shall each not be unreasonably withheld or delayed); provided, however, 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 5 Business Days of having received notice thereof; 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.. In addition, any Lender may make, carry or transfer Revolving Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender, solely to facilitate any Borrowing in an Alternative Currency. AMENDED AND RESTATED CREDIT AGREEMENT ▇▇▇▇▇ HEALTHCARE CORPORATION
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Revolving Credit Note (if the assigning Revolving Credit Lender’s Loans are evidenced by a Revolving Credit Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register of any Assignment and Acceptance and, other than in respect of assignments made pursuant to Section 2.17 (Substitution of Lenders) and Section 11.1(c) (Amendments, Waivers, Etc.), the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a LenderRevolving Credit Lender and, and if such Revolving Credit Lender were an Issuer, of such Issuer hereunder and thereunder, (ii) the Revolving Credit Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notation in the Register and (iiiii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those which survive surviving the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Revolving Credit Lender’s rights and obligations under the Loan Documents, such Revolving Credit Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.
Appears in 1 contract
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees and delegate all or a any portion of its rights and obligations hereunder duties under the Loan Documents (including all of the Obligations owed to it and its rights and obligations Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with respect the prior written consent (such consent not to the Revolving Loans, the Swing Loans and the Letters of Credit)be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, howeverthat no consent of Administrative Borrower shall be required (1) if an Event of Default has occurred and is continuing, that:or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender or a Related Fund; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent within 10 Business Days after having received notice thereof; and
(iB) if any Agent, Swing Lenders, and Issuing Lenders; provided that no such assignment consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;a Lender (other than a natural person).
(ii) Assignments shall be subject to the aggregate 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 Affiliate of a Loan Party,
(C) the amount being assigned pursuant of the Commitments and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignmentassignment is delivered to Agent) shall be in no event a minimum amount (if less than the Assignor’s entire interestunless waived by Agent) be less than of $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (except such minimum amount shall not apply to (I) with the consent an assignment or delegation by any Lender to any other Lender, an Affiliate of the Borrower and the Administrative Agent any Lender, or a Related Fund of such Lender or (II) if such assignment a group of new Lenders, each of which is being made to a Lender or an Affiliate of each other or Approved a Related Fund of such Lender; andnew Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(iiiD) 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 each partial assignment shall be subject to made as an assignment of a proportionate part of all the prior consent of the Administrative Agent, each Issuer assigning Lender’s rights and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of obligations under 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.Agreement,
(bE) The the parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Agent an Assignment and Acceptance. Upon ; provided, that Borrower and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such executionassignment, deliverytogether with payment instructions, acceptance addresses, and recording in related information with respect to the Register Assignee, have been given to Administrative Borrower and Agent by such Lender and the receipt Assignee,
(F) unless waived by Agent, the Administrative Agent from the assignee of an assignment assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing fee in the amount of $3,500 3,500,
(other than G) the Assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the case “Administrative Questionnaire”), and
(H) the Assignee shall have the ability to make Revolving Loans in accordance with the terms of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliatesthis Agreement,
(b) from From and after the effective date specified in such that Agent receives the executed Assignment and AcceptanceAcceptance and, if applicable, payment of the required processing fee, (i) the assignee Assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunderunder the Loan Documents, and (ii) the assignor thereunder assigning Lender shall, to the extent that rights and obligations hereunder and under this Agreement the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligationswith respect to Section 10.3) and be released from its any future obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party heretohereto and thereto); provided, 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 15 and Section 17.9(a).
(c) The Administrative Agent shall maintain at By executing and delivering an Assignment and Acceptance, the assigning Lender 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 Loan 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 address referred to in Section 11.8 obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of each this Agreement, together with 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 delivered 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 accepted authorizes Agent to take such actions 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 all of the obligations which by the terms of this Agreement are required to be performed by it and as a register for the recording Lender.
(d) Immediately upon Agent’s receipt of the names required processing fee, if applicable, and addresses delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Lenders Assignee and the Issuers, resulting adjustment of the Revolving Credit Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, its Commitment, and principal amount the other rights and interests of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each that Lender and each Issuer from time to time (the “Revolving Credit Facility RegisterOriginating Lender”) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a “Lender” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not 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) Borrower, 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 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 Collateral or guaranties (except to the extent expressly provided herein or in any 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 such Participant through such Lender (other than a waiver of default interest), or (E) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) all amounts payable by 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 Revolving Credit Facility Register 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, Agent, Borrower, the Collateral, 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.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of the Bank of Canada and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Agent (acting solely for this purpose as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Revolver Commitments (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolver Commitments to an Affiliate of such Lender or a Related Fund of such Lender (i) 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) and (ii) 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), Borrower 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. In the case of any assignment by a Lender of all or any portion of its Revolver Commitments to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, acting solely for this purpose as a non-fiduciary agent on behalf of Borrower, shall 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 such Registered Loans that is subject to such participations) (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. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register to the extent it has one) available for inspection review by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due courseas Borrower may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Birks Group Inc.)
Assignments and Participations. (a) Each Revolving Credit Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) if any such assignment shall be of the assigning Revolving Credit Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Revolving Credit Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignorassignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, AMENDED AND RESTATED CREDIT AGREEMENT ▇▇▇▇▇ HEALTHCARE CORPORATION
(IA) with the consent of the Borrower and the Administrative Agent or (IIB) 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 the prior consent of the Administrative Agent, the Borrower and each Issuer and the Borrower (which consents consent of the Borrower, the Administrative Agent and each Issuer shall each not be unreasonably withheld or delayed) and (iv) each Revolving Credit Lender shall establish and maintain a record of whether such assignment is an assignment of Revolving Credit Outstandings or Revolving Credit Commitments under any Revolving Credit Commitment Increase that is subject to any mandatory commitment reductions and/or prepayment provided herein (including, for avoidance of doubt, the automatic reduction and corresponding prepayment after the last day of the Amendment No. 5 Incremental Period as set forth in Section 2.5 (Reduction and Termination of the Revolving Credit Commitments)); provided, however, 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 5 Business Days of having received notice thereof; 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. In addition, any Lender may make, carry or transfer Revolving Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender, solely to facilitate any Borrowing in an Alternative Currency.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Revolving Credit Note (if the assigning Revolving Credit Lender’s Loans are evidenced by a Revolving Credit Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register of any Assignment and Acceptance and, other than in respect of assignments made pursuant to Section 2.17 (Substitution of Lenders) and Section 11.1(c) (Amendments, Waivers, Etc.), the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a LenderRevolving Credit Lender and, and if such Revolving Credit Lender were an Issuer, of such Issuer hereunder and thereunder, (ii) the Revolving Credit Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notation in the Register and (iiiii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those which survive surviving the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Revolving Credit Lender’s rights and obligations under the Loan Documents, such Revolving Credit Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings Loans and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings Loans and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignorassignor’s entire interest) be less than $5,000,000 1,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such a Lender; and
, 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 the prior consent of the Administrative Agent, each Issuer Agent and the Borrower (which consents shall not be unreasonably withheld or delayed)Borrower; and provided, further, that, notwithstanding any other provision of this Section 11.28.2, the consent of the Borrower shall not be required for any assignment occurring when any Event of Default under Section 6.1(a), (b), (h), (i) or (j) shall have occurred and be continuing.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreementand, shall be effective unless it is entered other than in the Register in due course.respect of assignments made pursuant to Section 2.17 (Substitution of Lenders) and Section 8.1(e) (
Appears in 1 contract
Sources: Credit Agreement (Amc Entertainment Holdings, Inc.)
Assignments and Participations. (a) Each Lender may 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:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than (x) in the case of Revolving Credit Outstandings and Revolving Credit Commitments, $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the case of Term Loans, $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower Company and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such a 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 the prior consent of the Administrative Agent, each Issuer Agent and the Borrower Company (which consents shall not be unreasonably withheld or delayed)) and (iv) if such Eligible Assignee is not, prior to the date of such assignment, a Revolving Credit Lender or an Affiliate of a Revolving Credit Lender, any such assignment with respect to Revolving Credit Outstandings and Revolving Credit Commitments, shall be subject to the prior consent of each Issuer and Swing Lender; and provided, however that 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 5 Business Days after having received notice thereof; provided, further, that, notwithstanding any other provision of this Section 11.2, the consent of the Borrower Company shall not be required for any assignment occurring when any Event of Default under Section 9.1(a), (b) or (f) shall have occurred and be continuing. Any such assignment need not be ratable as among (I) the Term Loan Facility and the Revolving Credit Facility or (II) the Term B-1 Loan Facility and the Term B-2 Loan Facility.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreementand, shall be effective unless it is entered other than in the Register in due course.respect of assignments made pursuant to Section 2.17 (Substitution of Lenders) and Section 11.1(c) (
Appears in 1 contract
Assignments and Participations. (a) Each Lender may selland, transferif demanded by the Borrower (following a demand by such Lender pursuant to Section 2.11 or 2.14 or a suspension of Eurodollar Rate Advances pursuant to Section 2.12 and only if no Event of Default has occurred and is continuing) upon at least five Business Days’ notice to such Lender and the Agent, negotiate or will assign to one or more Eligible Assignees Persons all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCredit Commitment, its undrawn Letter of Credit Commitment, the Swing Loans Advances owing to it, its participations in Letters of Credit and the Letters of CreditNote or Notes held by it); provided, however, that:
that (i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a constant, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings all rights and Revolving Credit Commitment;
obligations under and in respect of one or more of the Facilities, (ii) except in the aggregate 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 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereofthereof and (y) the undrawn Letter of Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the applicable Assignment and Acceptance) shall in no event be less than $1,000,000, except (I) with the consent of unless, in each case, the Borrower and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
otherwise agree, (iii) if each such assignment shall be to an Eligible Assignee is notAssignee, prior (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 assignmentprincipal amount and all other amounts payable to such Lender under this Agreement, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to and (vi) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, 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 no such recordation fee shall be payable in the case of an assignment made at the request of the Borrower. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive other than its rights under Sections 2.11, 2.14 and 8.04 to the payment in full of the Obligationsextent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis 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: (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, 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 Administrative Agent shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan.
(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, Swing Loanwithout limitation, Letter all or a portion of Credit Obligationits Commitment, Reimbursement Obligationthe Advances owing to it and any Note or Notes held by it); provided, nor 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 Assignment and Acceptance or Assumption such Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders shall be effective unless 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.
(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 is entered from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Register Advances owing to it and any Note or Notes held by it) in due coursefavor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Sources: Credit Agreement (Gatx Corp)
Assignments and Participations. (a) Each The 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, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may sellassign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of this Section 10.5, transfer(ii) by way of participation in accordance with the provisions of subsection (d) of this Section 10.5 or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) (and any other attempted assignment or transfer by any party hereto shall be null and void, negotiate except as provided in the last sentence of Section 10.5(b)). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section 10.5 and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving Loans, the Swing Loans Commitment and the Letters Loans (including for purposes of Creditthis subsection (b), participations in Letter of Credit Outstandings and in Swingline Loans) at the time owing to it); provided, however, that:
provided that (i) if any such except in the case of an assignment shall be of the entire remaining amount of the assigning Lender’s Revolving Credit Outstandings Commitment and Revolving Credit Commitmentthe Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in subsection (g) of this Section 10.5) with respect to a Lender, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment (assignment, determined as of the date of the Assignment and Acceptance with respect to such assignment) assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date, shall in no event (if less than the Assignor’s entire interest) not be less than $5,000,000 or an integral multiple unless each of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) if such assignment and, so long as no Event of Default has occurred and is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
(iii) if such Eligible Assignee is notcontinuing, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer and the Borrower otherwise consents (which consents shall each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and providedobligations under this Agreement with respect to the Loans or the Commitment assigned, furtherexcept that this clause (ii) shall not apply to rights in respect of Swingline Loans; (iii) any assignment of a Commitment must be approved by the Administrative Agent (in its reasonable discretion) and, that, notwithstanding with respect to any other provision assignments of this Section 11.2the Revolving Credit Commitments, the consent of Issuing Bank and the Borrower shall Swingline Lender, unless the Person that is the proposed assignee is itself a Lender (whether or not be required for any assignment occurring when any Event of Default shall have occurred the proposed assignee would otherwise qualify as an Eligible Assignee or an Approved Fund); and be continuing.
(biv) The the parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500. Upon such execution, delivery, Subject to acceptance and recording in the Register and the receipt thereof by the Administrative Agent from the assignee pursuant to subsection (c) of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) this Section 10.5, from and after the effective date specified in such each Assignment and Acceptance, (i) the assignee Eligible Assignee thereunder shall become be a party hereto to this Agreement and, to the extent that rights and obligations under of the Loan Documents have been interest assigned to such assignee pursuant to by such Assignment and Acceptance, have the rights and obligations of a LenderLender under this Agreement, and if such the assigning Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been of the interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party heretohereto but shall continue to be entitled to the benefits of Sections 2.11, 2.12, 2.13, 10.6 and 10.7 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. 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 10.5.
(c) The Administrative Agent Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at its address referred to in Section 11.8 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Lenders, and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount amounts of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) Outstandings owing to to, each Lender and each Issuer pursuant to the terms hereof from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposesconclusive, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register pursuant to the terms hereof as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents any Lender, at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan.
(d) Any Lender may at any time, Swing Loanwithout the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in Letter of Credit ObligationOutstandings and/or Swingline Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, Reimbursement Obligation(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, nor 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. 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 Assignment and Acceptance amendment, modification or Assumption 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, waiver or other modification described in the first proviso to Section 10.8 that directly affects such Participant. Subject to subsection (e) of this Section 10.5, the Borrower agrees that each Participant shall be effective entitled to the benefits of Sections 2.11, 2.12 and 2.13 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section 10.5. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.2 as though it were a Lender, provided such Participant agrees to be subject to Section 2.16(b) as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment under Section 2.11 or 2.12 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 subject to Section 2.12(c) if it were a Lender shall not be entitled to the benefits of Section 2.12 unless the Borrower is entered notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.12(c) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) 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 such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) As used herein, the Register in due course.following terms have the following meanings:
Appears in 1 contract
Sources: Credit Agreement (Ipayment Inc)
Assignments and Participations. (a) Each The 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, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) At any time after the Effective Date, each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving LoansCommitment, the Swing Loans and or interest in the Letters of Credit); provided, however, that:
that (i) if any each such assignment shall be in respect of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment Commitments or Loans shall cover the same percentage of such Lender’s Revolving 's Commitment, Loans and Letter of Credit Outstandings and Revolving Credit Commitment;
Obligations, (ii) unless the Administrative Agent and the Borrower otherwise consent, the aggregate amount of the 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or and shall be an integral multiple of $1,000,000 100,000 (unless the assigning Lender's Commitment, Loans and Letter of Credit Obligations are less than $5,000,000, in excess thereof, except (I) with which case the consent of assignment may be in the Borrower and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund amount of such Lender; and
Commitment, Loans and Letter of Credit Obligations) provided that assignments between Lenders shall have no minimum amount, (iii) if such Eligible Assignee is not, prior to the date except in respect of such assignment, assignments between Lenders and their Affiliates or any assignment by a Lender in connection with the sale of all or an Affiliate or Approved Fund substantially all of a Lenderits assets, such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer and the Borrower shall consent (which consents consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the consent of shall be deemed to have been given if the Borrower has not expressly refused such consent within five Business Days after notice thereof has been delivered by the Assigning Lender (through the Administrative Agent)) and the Administrative Agent and the Issuing Banks shall consent to such assignment (which shall not be required for any assignment occurring when any Event of Default shall have occurred unreasonably withheld) and be continuing.
(biv) The the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Agent an Assignment and Acceptance, together with processing and recordation fee of $3,500. Upon such execution, delivery, Subject to acceptance and recording in the Register and the receipt recordation thereof by the Administrative Agent from the assignee pursuant to subsection (d) of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) this Section, from and after the effective date specified in such each Assignment and Acceptance, (iA) the assignee Eligible Assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under of the Loan Documents have been interest assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and Lender hereunder as fully as if such assignee had been named as a Lender were an Issuer, in accordance with the terms of such Issuer hereunder and thereunder, this Agreement and (iiB) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement have been of the interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under this Agreement. Notwithstanding any provision of this
Section 12.01 the Loan Documents, other than those relating consent of the Borrower shall not be required for any -------------- assignment that occurs when an Event of Default shall have occurred and be continuing with respect to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).Borrower. 92 ================================================================================
(c) The Administrative Agent shall maintain at 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) the assignment made under such Assignment and Acceptance is made without recourse and, other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of 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 Borrower or the performance or observance by the Borrower of any of its address referred to in Section 11.8 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 each this Agreement, together with copies of the financial statements delivered pursuant to Article VI 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 Acceptance delivered to and accepted by it and a register for the recording of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.Acceptance;
Appears in 1 contract
Assignments and Participations. (a) Each The 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 (including any Affiliate of an Issuing Bank that issues any Letter of Credit), except that (i) neither the Borrower nor any Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower or any Loan Party without such consent shall be null and void) and (ii) no Lender may sellassign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.07. Nothing in this Agreement, transferexpressed or implied, negotiate shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of an Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in Section 8.07(c)) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in Section 8.07(b)(ii), any Lender may assign to one or more Eligible Assignees Persons (other than an Ineligible Assignee) all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights Commitments and obligations the Advances at the time owing to it) with respect the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower; provided that the Borrower shall be deemed to have consented to an assignment unless it shall have objected thereto by written notice to the Revolving Loans, the Swing Loans and the Letters of Credit)Administrative Agent within five Business Days after having received notice thereof; provided, howeverfurther, that:
(i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in that no event (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or shall be required
(III) if such for an assignment is being made to a Lender or an Affiliate of a Lender or Approved Fund of such Lendera Lender or (II) if an Event of Default has occurred and is continuing, any other assignee; and
(iiiB) if such Eligible Assignee is not, prior the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.and
(bC) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender with respect to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving LoansFacility, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, Issuing Bank and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this AgreementSwing Line Bank. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.
Appears in 1 contract
Assignments and Participations. (a) Each Lender Bank may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving Loans, the Swing Loans its Note, and the Letters of Creditits Commitment); provided, however, that:
(i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitmentto an Eligible Assignee;
(ii) except in the aggregate case of an assignment to another Bank or an assignment of all of a Bank's rights and obligations under this Agreement, any such partial assignment shall be in an amount being assigned pursuant at least equal to each such assignment (determined as of the date of the Assignment and 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 an integral multiple of $1,000,000 100,000 in excess thereof, except ;
(Iiii) with the consent of the Borrower and the Administrative Agent or (II) if each such assignment is being made to by a Lender or an Affiliate or Approved Fund Bank shall be of such Lendera constant, and not varying, percentage of all of its rights and obligations under this Agreement and its Note; and
(iiiiv) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and AcceptanceAcceptance Agreement (herein so called) in the form of Exhibit L hereto, together with any Note subject to such assignment and a processing fee of $3,500. Upon such execution, delivery, and acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and AcceptanceAcceptance Agreement, (i) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to of such assignee pursuant to such Assignment and Acceptanceassignment, have the rights obligations, rights, and obligations benefits of a Lender, and if such Lender were an Issuer, of such Issuer Bank hereunder and thereunder, and (ii) the assignor thereunder assigning Bank shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under this Agreement. Upon the Loan Documentsconsummation of any assignment pursuant to this Section 14.10(a), other than those relating the assignor, Administrative Agent and Borrower shall make appropriate arrangements so that, if required, new Notes are issued to events or circumstances occurring prior to such assignment (and, in the case of an Assignment assignor and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations assignee. If the assignee is not incorporated under the Loan DocumentsLaws of the United States of America or a state thereof, such Lender it shall cease deliver to be a party heretoBorrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with Section 4.6(d).
(cb) The Administrative Agent shall maintain at its address referred to in Section 11.8 set forth on Schedule 1 hereto, a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Banks and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansLoans owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer Bank from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, the Lenders Agents and the Issuers shall Banks may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, Bank hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Bank at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(c) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreement executed by the parties thereto, together with any Note subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed and is in substantially the form of Exhibit L hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(d) Each Bank may sell participations to one or more Persons in all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and its Loans); 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) the participant shall be effective unless it entitled to the benefit of the yield protection provisions contained in Article IV and the right of set-off contained in Section 14.4, and (iv) Borrower shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and such Bank shall retain the sole right to enforce the obligations of Borrower relating to its Loans and its Note and to approve any amendment, modification, or waiver of any provision of this Agreement (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is entered payable on such Loans or Note, extending any scheduled principal payment date or date fixed for the payment of interest on such Loans or Note, or extending its Commitment).
(e) Notwithstanding any other provision set forth in this Agreement, any Bank may at any time assign and pledge all or any portion of its Loans and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
(f) Any Bank may furnish any information concerning Parent, Borrower or any other Credit Party in the Register in due coursepossession of such Bank from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the provisions of Section 14.17 hereof.
(g) Neither Parent nor Borrower shall assign or transfer any rights or obligations under any Loan Paper or permit any Credit Party to assign or transfer any rights or obligations under any Loan Paper without first obtaining all Banks' consent, and any purported assignment or transfer without all Banks' consent is void.
Appears in 1 contract
Assignments and Participations. (a) 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 and their respective successors and assigns; provided, 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 the Administrative Agent and any such assignment without the Lenders’ and the Administrative Agent’s prior written consent shall be null and void and no Lender may assign or transfer any of its rights hereunder or under the other Loan Documents except (i) to an assignee in accordance with the provisions of Section 12.07(b) and (ii) by way of participation in accordance with the provisions of Section 12.07(i).
(b) Each Lender may sellwith the written consent of the Administrative Agent, transfer, negotiate or assign to (i) one or more Eligible Assignees Transferees and (ii) if an Event of Default under Sections 9.01(a), (f) or (g) has occurred and is continuing, one or more Ineligible Institutions, in each case, all or a portion of its rights and obligations hereunder (including all of its rights and obligations under this Agreement with respect to all or a portion of its Term Loan Commitment and any portion of the Revolving Loans, Term Loans made by it (provided that assignments to Affiliated Lenders shall not require the Swing Loans and consent of the Letters of CreditAdministrative Agent); provided, however, that:
that (i) if any such assignment under clause (i) above shall be require the prior consent of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentAdministrative Borrower (which consent shall not be unreasonably withheld, conditioned or delayed nor shall it be required during the existence of an Event of Default), (ii) such assignment shall cover is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the same percentage remainder of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
) (iiexcept such minimum amount shall not apply to an assignment by a Lender to (x) a Lender, 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 being to be assigned pursuant to each all such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than new Lenders is at least $5,000,000 or an integral a multiple of $1,000,000 in excess thereof), except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the parties to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, each such assignment shall be subject execute and deliver to each Agent, an Assignment and Acceptance, and such parties shall deliver to the prior consent Administrative Agent, for the benefit of the Administrative Agent, each Issuer a processing and recordation fee of $5,000 (provided that the Borrower Administrative Agent, in its sole discretion, may elect to waive or reduce such processing and recordation fee), (iv) any such assignment shall require the consent of the Administrative Agent (which consents consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the that no written consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) The parties to each assignment shall execute and deliver to the Administrative Collateral Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from or the assignee of an assignment fee Administrative Borrower shall be required (1) in the amount of $3,500 (other than in the case of an connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (2) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender and (v) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax forms required by any Agent or their respective Affiliates) Section 2.08 and an Administrative Questionnaire. Upon such execution, delivery and acceptance, from and after the effective date specified in such each Assignment and AcceptanceAcceptance and recordation in the Register, (iA) the assignee thereunder shall become a party hereto “Lender” hereunder and, in addition to the extent that rights and obligations under the Loan Documents have been assigned hereunder held by it immediately prior to such assignee pursuant to such Assignment and Acceptanceeffective date, have the rights and obligations of a Lender, hereunder that have been assigned to it pursuant to such Assignment and if such Lender were an Issuer, of such Issuer hereunder and thereunder, Acceptance and (iiB) the assignor assigning Lender thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto)) Notwithstanding the foregoing or anything to the contrary set forth herein, no assignment shall be made at any time to any Defaulting Lender or any of its Subsidiaries or Affiliates, or any Person who, upon becoming a Lender would constitute a Defaulting Lender.
(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 Administrative Agent shall maintain shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at one of its address referred to offices in Section 11.8 the United States, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recording recordation of the names and addresses of the Lenders and the IssuersCommitments of, and the Revolving Credit Commitments of and principal amount of the Revolving Loans (and stated interest thereon) (the “Registered Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations”) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”)time. The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrowers, the Administrative Agent, Agents and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Administrative Borrower and the Facility Agents any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(e) Upon receipt by the Administrative Agent of Credit Obligation, Reimbursement Obligation, nor any a completed Assignment and Acceptance and the processing and recordation fee (if applicable) and other items required to be delivered to the Administrative Agent Section 12.07(b), and subject to any consent required from the Administrative Agent pursuant to Section 12.07(b) (which consent of the Administrative Agent must be evidenced by the Administrative Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, 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 Assumption sold in whole or in part only by registration of such assignment or sale on 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. 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 on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(g) 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.
(h) Any Non-U.S. Lender 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 (x) one or more Eligible Transferees and (y) if an Event of Default under Sections 9.01(a), (f) or (g) has occurred and is continuing, one or more Ineligible Institutions, in each case, 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 and that any such participant shall not be entitled to receive any greater payment or benefit hereunder than such Lender would have been entitled to receive with respect to the participation sold to such participant unless the sale of such participation is made with the Administrative Borrower’s prior written consent; (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 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 effective unless entitled to the benefits of Section 2.08, subject to the obligations and limitations set forth thereunder; provided that the Administrative Borrower shall be notified of such participation and such participant shall agree, for the benefit of the Borrowers, to comply with Section 2.08(d) of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it is entered was a Lender.
(j) Any Lender may at any time pledge or assign a security interest in all or any 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 or loans made to, or other indebtedness issued by, such Lender pursuant to a securitization transaction (including any structured warehouse credit facility, collateralized loan obligation transaction or similar facility or transaction, and including any further securitization of the Register indebtedness or equity issued under such a transaction) (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect a Securitization, including, without limitation, by providing such information as may be reasonably requested by such Lender in due courseconnection with the rating of its Loans or any Securitization.
Appears in 1 contract
Assignments and Participations. (a) Each The 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 (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may sellassign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.07. Nothing in this Agreement, transferexpressed or implied, negotiate shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in Section 8.07(c)) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in Section 8.07(b)(ii), any Lender may assign to one or more Eligible Assignees Persons (other than an Ineligible Assignee) all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights Commitments and obligations the Advances Alliance Resource Fourth Amended and Restated Credit Agreement at the time owing to it) with respect the prior written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower; provided that the Borrower shall be deemed to have consented to an assignment unless it shall have objected thereto by written notice to the Revolving Loans, the Swing Loans and the Letters of Credit)Administrative Agent within five Business Days after having received notice thereof; provided, howeverfurther, thatthat no consent of the Borrower shall be required (I) for an assignment to a Lender or an Affiliate of a Lender, (II) for an assignment of all or any portion of any Term Advance or (III) if an Event of Default has occurred and is continuing, any other assignee;
(B) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment (I) to a Lender or an Affiliate of a Lender or (II) of all or any portion of any Term Advance; and
(C) each Issuing Bank and the Swing Line Bank; provided that no such consent shall be required for an assignment of all or any portion of any Term Advance.
(ii) Assignments shall be subject to the following additional conditions:
(iA) if any such except in the case of an assignment shall be to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the applicable Commitment or Advances of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage amount of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant Commitment or the Advances of the assigning Lender subject to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignmentassignment is delivered to the Administrative Agent) shall in no event (if not be less than the Assignor’s entire interest) be lesser of $5,000,000 and 5% of the aggregate amount of the applicable Commitment that is the subject of such assignment or, in the case of Term Advances, not less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof1,000,000, except (I) with the consent unless each of the Borrower and the Administrative Agent or (II) if otherwise consent; provided that no 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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 if an Event of Default shall have has occurred and be is continuing.;
(bB) The each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; provided that this clause (B) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis, except that any assignment under the Revolving Credit Facility shall include a proportionate assignment under the Swing Line Facility, if applicable;
(C) the parties to each assignment shall execute and deliver to the Administrative AgentAgent an Assignment and Assumption, for its together with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee Alliance Resource Fourth Amended and Restated Credit Agreement 123 designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower, the Loan Parties and their respective Related Parties or their respective Securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
(iii) Subject to acceptance and recording in the Register (as defined in clause (c) belowthereof pursuant to Section 8.07(b)(iv), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.
Appears in 1 contract
Sources: Credit Agreement
Assignments and Participations. (a) Each Lender may selland, transferso long as no Default shall have occurred and be continuing, negotiate if demanded by the Borrower (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 will, assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCommitment or Commitments, the Swing Loans Advances owing to it and the Letters of CreditNote or Notes held by it); provided, however, that:
that (i) if any each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under and in respect of any or all Facilities (determined as of the assigning Lender’s Revolving Credit Outstandings date on which the Assignment and Revolving Credit Commitment, Acceptance with respect to such assignment shall cover is delivered to the same percentage Administrative Agent or, if a “Trade Date” is specified in the Assignment and Acceptance, as of such Lender’s Revolving Credit Outstandings “Trade Date”), but nothing contained in this Section 8.07 shall restrict any Lender from assigning all or a portion of its rights and Revolving Credit Commitment;
obligations among separate Facilities on a non-pro rata basis, (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, the aggregate amount of the Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of on which the Assignment and Acceptance with respect to such assignmentassignment is delivered to the Administrative Agent or, if a “Trade Date” is specified in the Assignment and Acceptance, as of such “Trade Date”) shall in no event (if less than the Assignor’s entire interest) be less than $5,000,000 2,500,000 (or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and such lesser amount as shall be approved by the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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 so long as no Event of Default shall have occurred and be continuing.
continuing at the time of effectiveness of such assignment, the Borrower) (bprovided that in connection with simultaneous assignments to two or more related Approved Funds, such Approved Funds shall be treated as one assignee for purposes of determining compliance with such minimum amount of assignment) The under the Revolving Credit Facility for which a Commitment is being assigned (it being understood that an assignment under the Term Facility shall not be subject to any requirement for a minimum amount), (iii) 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, such assignment shall be approved by the Administrative Agent and, so long as no Event of Default shall have occurred and be continuing at the time of effectiveness of such assignment, the Borrower (in each case such approvals not to be unreasonably withheld or delayed), provided that, in any event, any assignment of a Revolving Credit Commitment must be approved by the Administrative Agent, the Issuing Banks and the Swing Line Banks, (iv) 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 8.07(a) 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 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, (vii) no such assignments shall be permitted without the consent of the Administrative Agent until the Administrative Agent shall have notified the Lender Parties that syndication of the Commitments hereunder has been completed and (viii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance. , together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500; provided, however, that for each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a), the Borrower shall pay to the Administrative Agent the applicable processing and recordation fee; provided, further, however, that only one such fee shall be payable in connection with simultaneous assignments by or to two or more related Approved Funds.
(b) Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an IssuerSwing Line Bank or Issuing Bank, of such Issuer as the case may be, hereunder and thereunder, and (ii) the Lender, Swing Line Bank or Issuing Bank assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive other than its rights under Sections 2.10, 2.12 and 8.04 to the payment in full of the Obligationsextent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s, Swing Line Bank’s or Issuing Bank’s rights and obligations under the Loan Documentsthis Agreement, such Lender Lender, Swing Line Bank 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: (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 performed by it as a Lender, Swing Line Bank or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and and, as agent for the Borrower solely for such purpose, a register for the recording recordation of the names and addresses of the Lenders Lender Parties and the IssuersCommitment under each Facility of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing under each Facility to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer Party from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, the Lenders Agents and the Issuers shall Lender Parties may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, Party hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents 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. No Revolving LoanIn the case of any assignment by a Lender, Swing Loanwithin 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 (which shall be marked “Amended and Restated”) an amended and restated 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, 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-1 or A-2 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 ObligationCommitment at any time; provided, Reimbursement Obligationhowever, nor any 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 Acceptance, together with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or Assumption 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 Advances or 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 Advances or 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 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 held by it) in favor of any Federal Reserve Bank.
(j) Notwithstanding anything to the contrary contained herein, 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 any holders of obligations owed, or securities issued, by such Lender as collateral security for such obligations or securities, or to any trustee for, or any representative of, such holders, provided, that unless and until such holder, trustee or representative actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such holder, trustee or representative shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such holder, trustee or representative 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 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 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 effective unless it is entered in obligated to make such Advance pursuant to the Register in due course.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, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoi
Appears in 1 contract
Assignments and Participations. (a) 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 and their respective successors and assigns; provided, 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 the Administrative Agent and any such assignment without the Lenders’ and the Administrative Agent’s prior written consent shall be null and void and no Lender may assign or transfer any of its rights hereunder or under the other Loan Documents except (i) to an assignee in accordance with the provisions of Section 12.07(b) and (ii) by way of participation in accordance with the provisions of Section 12.07(i).
(b) Each Lender may sellwith the written consent of the Administrative Agent, transfer, negotiate or assign to (i) one or more Eligible Assignees Transferees and (ii) if an Event of Default under Sections 9.01(a), (f) or (g) has occurred and is continuing, one or more Ineligible Institutions, in each case, all or a portion of its rights and obligations hereunder (including all of its rights and obligations under this Agreement with respect to all or a portion of its Term Loan Commitment and any portion of the Revolving Loans, Term Loans made by it (provided that assignments to Affiliated Lenders shall not require the Swing Loans and consent of the Letters of CreditAdministrative Agent); provided, #97100791v3 however, that:
that (i) if any such assignment under clause (i) above shall be require the prior consent of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentAdministrative Borrower (which consent shall not be unreasonably withheld, conditioned or delayed nor shall it be required during the existence of an Event of Default), (ii) such assignment shall cover is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the same percentage remainder of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
) (iiexcept such minimum amount shall not apply to an assignment by a Lender to (x) a Lender, 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 being to be assigned pursuant to each all such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than new Lenders is at least $5,000,000 or an integral a multiple of $1,000,000 in excess thereof), except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the parties to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, each such assignment shall be subject execute and deliver to each Agent, an Assignment and Acceptance, and such parties shall deliver to the prior consent Administrative Agent, for the benefit of the Administrative Agent, each Issuer a processing and recordation fee of $5,000 (provided that the Borrower Administrative Agent, in its sole discretion, may elect to waive or reduce such processing and recordation fee), (iv) any such assignment shall require the consent of the Administrative Agent (which consents consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the that no written consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) The parties to each assignment shall execute and deliver to the Administrative Collateral Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from or the assignee of an assignment fee Administrative Borrower shall be required (1) in the amount of $3,500 (other than in the case of an connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (2) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender and (v) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax forms required by any Agent or their respective Affiliates) Section 2.08 and an Administrative Questionnaire. Upon such execution, delivery and acceptance, from and after the effective date specified in such each Assignment and AcceptanceAcceptance and recordation in the Register, (iA) the assignee thereunder shall become a party hereto “Lender” hereunder and, in addition to the extent that rights and obligations under the Loan Documents have been assigned hereunder held by it immediately prior to such assignee pursuant to such Assignment and Acceptanceeffective date, have the rights and obligations of a Lender, hereunder that have been assigned to it pursuant to such Assignment and if such Lender were an Issuer, of such Issuer hereunder and thereunder, Acceptance and (iiB) the assignor assigning Lender thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender▇▇▇▇▇▇’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto)) Notwithstanding the foregoing or anything to the contrary set forth herein, no assignment shall be made at any time to any Defaulting Lender or any of its Subsidiaries or Affiliates, or any Person who, upon becoming a Lender would constitute a Defaulting Lender.
(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 #97100791v3 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 Administrative Agent shall maintain shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at one of its address referred to offices in Section 11.8 the United States, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recording recordation of the names and addresses of the Lenders and the IssuersCommitments of, and the Revolving Credit Commitments of and principal amount of the Revolving Loans (and stated interest thereon) (the “Registered Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations”) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”)time. The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrowers, the Administrative Agent, Agents and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Administrative Borrower and the Facility Agents any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(e) Upon receipt by the Administrative Agent of Credit Obligation, Reimbursement Obligation, nor any a completed Assignment and Acceptance and the processing and recordation fee (if applicable) and other items required to be delivered to the Administrative Agent Section 12.07(b), and subject to any consent required from the Administrative Agent pursuant to Section 12.07(b) (which consent of the Administrative Agent must be evidenced by the Administrative Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, 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 Assumption sold in whole or in part only by registration of such assignment or sale on 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. 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 on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(g) 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 #97100791v3 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.
(h) Any Non-U.S. Lender 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 (x) one or more Eligible Transferees and (y) if an Event of Default under Sections 9.01(a), (f) or (g) has occurred and is continuing, one or more Ineligible Institutions, in each case, 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 and that any such participant shall not be entitled to receive any greater payment or benefit hereunder than such Lender would have been entitled to receive with respect to the participation sold to such participant unless the sale of such participation is made with the Administrative Borrower’s prior written consent; (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 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 effective unless entitled to the benefits of Section 2.08, subject to the obligations and limitations set forth thereunder; provided that the Administrative Borrower shall be notified of such participation and such participant shall agree, for the benefit of the Borrowers, to comply with Section 2.08(d) of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it is entered was a Lender.
(j) Any Lender may at any time pledge or assign a security interest in all or any 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 or loans made to, or other indebtedness issued by, such Lender pursuant to a securitization transaction (including any structured warehouse credit facility, collateralized loan obligation transaction or similar facility or transaction, and including any further securitization of the Register indebtedness or equity issued under such a transaction) (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect a Securitization, including, without limitation, by providing such information as may be #97100791v3 reasonably requested by such Lender in due courseconnection with the rating of its Loans or any Securitization.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) if any such assignment shall be of the assigning Lender’s 's Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s 's Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignor’s 's entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
, 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 the prior consent of the Administrative Agent, each Issuer Agent and the Borrower (which consents consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.211.2 (Assignments and Participations), the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and Acceptance, together with any Revolving Credit Note (if the assigning Lender's Loans are evidenced by a Revolving Credit Note) subject to such assignment. In addition, any Lender or Eligible Assignee assuming a Revolving Credit Commitment in connection with a Facility Increase shall execute an Assumption Agreement in accordance with Section 2.19 (Facility Increase). Upon such execution, delivery, acceptance and recording of any Assignment and Acceptance or Assumption Agreement, as the case may be, and, other than in the Register respect of assignment made pursuant to Section 2.17 (Substitution of Lenders) and Section 11.1(c), the receipt by the Administrative Agent from the assignee of an assignment assignment/assumption fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) 3,500, then from and after the effective date specified in such Assignment and AcceptanceAcceptance or Assumption Agreement, as the case may be, (i) the assignee thereunder shall become a party hereto and, to the extent that rights 95 and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and AcceptanceAcceptance or assumed by such assuming party pursuant to such Assumption Agreement, have the rights and obligations of a Lender, and and, in the case of an assignment, if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder under an Assignment and Acceptance shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those which survive surviving the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 (Notices, Etc.) a copy of each Assignment and Acceptance and each Assumption Agreement delivered to and accepted by it and a register for the recording of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or "). Any assignment pursuant to this Section 11.2 (Assignments and Participations) shall not be effective until such assignment is recorded in the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and Borrower, the Facility Agents 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 Loans (including the Revolving Credit Notes evidencing such Loans) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Loans shall be transferable only upon notation of such transfer in the Register. No A Revolving Credit Note shall only evidence the Lender's or an assignee's right, title and interest in and to the related Loan, Swing Loanand in no event is any such Revolving Credit Note to be considered a bearer instrument or obligation. This Section 11.2 (Assignments and Participations) shall be construed so that the Loans are at all times maintained in "registered form" within the meaning of Sections 163(f), Letter 871(h)(2) and 881(c)(2) of Credit Obligationthe Internal Revenue Code or such regulations. Solely for purposes of this and for tax purposes only, Reimbursement Obligationthe 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 and an assignee or an Assumption Agreement executed by the Borrower and a Lender or an Eligible Assignee, nor any the Administrative Agent shall, if such Assignment and Acceptance or Assumption Agreement has been completed, (i) accept such Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered (ii) record the information contained therein in the Register and (iii) in due coursethe case of an Assignment and Acceptance, give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall, if requested by such assignee, execute and deliver to the Administrative Agent, new Revolving Credit Notes to the order of such assignee in an amount equal to the Revolving Credit Commitments assumed by it pursuant to such Assignment and Acceptance or Assumption Agreement and, if the assigning Lender, in the case of an Assignment and Acceptance, has surrendered any Revolving Credit Note for exchange in connection with the assignment and has retained Revolving Credit Commitments hereunder, new Revolving Credit Notes to the order of the assigning Lender in an amount equal to the Revolving Credit Commitments retained by it hereunder. Such new Revolving Credit Notes shall be dated the same date as the surrendered Revolving Credit Notes and be in substantially the form of Exhibit C (Form of Revolving Credit Note).
(f) In addition to the other assignment rights provided in this Section 11.2 (Assignments and Participations), each Lender may 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 Loans), to (x) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrower or (y) in the case of any Lender that is a Fund, any holders of obligations owed or Securities issued by such Lender as security for such obligations or Securities or any trustee for, or other representative of, such holders, and this Section shall not apply to any such pledge or assignment of a security interest; provided, however, that no such assignment shall release the assigning Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(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 Revolving Loans and Letters of Credit). 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 any Loan Party 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 Loan Parties), except if any such amendment, waiver or other modification or consent would (i) 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 (ii) result in the release of all or substantially all of the Collateral other than in accordance with Section 10.7(b). 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 Agreement, and (z) 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. Each participant shall be entitled to the benefits of Section 2.15 (Capital Adequacy) and Section 2.16 (Taxes) and of Section 2.14(d) (Illegality) 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 Section 2.15 (Capital Adequacy), or Section 2.16 (Taxes) or Section 2.14(d) (Illegality) to the participant in the rights and obligations of any Lender (together with such Lender) any payment in excess of the amount the Borrower would have been obligated to pay to such Lender in respect of such interest had such participation not been sold.
(h) Any Issuer may at any time assign its rights and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the Borrower, the Administrative Agent, such Issuer and such Eligible Assignee. If any Issuer ceases to be a Lender hereunder by virtue of any assignment made pursuant to this Section 11.2 (Assignments and Participations), then, as of the effective date of such cessation, such Issuer's obligations to Issue Letters of Credit pursuant to Section 2.4 (Letters of Credit) shall terminate and such Issuer shall be an Issuer hereunder only with respect to outstanding Letters of Credit issued prior to such date.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) if any such assignment shall be of the assigning Lender’s 's Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s 's Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignor’s 's entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
, 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 the prior consent of the Administrative Agent, each Issuer Agent and the Borrower (which consents consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.211.2 (Assignments and Participations), the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and Acceptance, together with any Revolving Credit Note (if the assigning Lender's Loans are evidenced by a Revolving Credit Note) subject to such assignment. In addition, any Lender or Eligible Assignee assuming a Revolving Credit Commitment in connection with a Facility Increase shall execute an Assumption Agreement in accordance with Section 2.19 (Facility Increase). Upon such execution, delivery, acceptance and recording of any Assignment and Acceptance or Assumption Agreement, as the case may be, and, other than in the Register respect of assignment made pursuant to Section 2.17 (Substitution of Lenders) and Section 11.1(c) (Amendments, Waivers, Etc.), the receipt by the Administrative Agent from the assignee of an assignment assignment/assumption fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) 3,500, then from and after the effective date specified in such Assignment and AcceptanceAcceptance or Assumption Agreement, as the case may be, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and AcceptanceAcceptance or assumed by such assuming party pursuant to such Assumption Agreement, have the rights and obligations of a Lender, and and, in the case of an assignment, if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder under an Assignment and Acceptance shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those which survive surviving the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 (Notices, Etc.) a copy of each Assignment and Acceptance and each Assumption Agreement delivered to and accepted by it and a register for the recording of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or "). Any assignment pursuant to this Section 11.2 (Assignments and Participations) shall not be effective until such assignment is recorded in the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and Borrower, the Facility Agents 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 Loans (including the Revolving Credit Notes evidencing such Loans) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Loans shall be transferable only upon notation of such transfer in the Register. No A Revolving Credit Note shall only evidence the Lender's or an assignee's right, title and interest in and to the related Loan, Swing Loanand in no event is any such Revolving Credit Note to be considered a bearer instrument or obligation. This Section 11.2 (Assignments and Participations) shall be construed so that the Loans are at all times maintained in "registered form" within the meaning of Sections 163(f), Letter 871(h)(2) and 881(c)(2) of Credit Obligationthe Internal Revenue Code or such regulations. Solely for purposes of this and for tax purposes only, Reimbursement Obligationthe 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 and an assignee or an Assumption Agreement executed by the Borrower and a Lender or an Eligible Assignee, nor any the Administrative Agent shall, if such Assignment and Acceptance or Assumption Agreement has been completed, (i) accept such Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered (ii) record the information contained therein in the Register and (iii) in due coursethe case of an Assignment and Acceptance, give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall, if requested by such assignee, execute and deliver to the Administrative Agent, new Revolving Credit Notes to the order of such assignee in an amount equal to the Revolving Credit Commitments assumed by it pursuant to such Assignment and Acceptance or Assumption Agreement and, if the assigning Lender, in the case of an Assignment and Acceptance, has surrendered any Revolving Credit Note for exchange in connection with the assignment and has retained Revolving Credit Commitments hereunder, new Revolving Credit Notes to the order of the assigning Lender in an amount equal to the Revolving Credit Commitments retained by it hereunder. Such new Revolving Credit Notes shall be dated the same date as the surrendered Revolving Credit Notes and be in substantially the form of Exhibit C (Form of Revolving Credit Note).
(f) In addition to the other assignment rights provided in this Section 11.2 (Assignments and Participations), each Lender may 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 Loans), to (x) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrower or (y) in the case of any Lender that is a Fund, any holders of obligations owed or Securities issued by such Lender as security for such obligations or Securities or any trustee for, or other representative of, such holders, and this Section shall not apply to any such pledge or assignment of a security interest; provided, however, that no such assignment shall release the assigning Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(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 Revolving Loans and Letters of Credit). 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 any Loan Party 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 Loan Parties), except if any such amendment, waiver or other modification or consent would (i) 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 (ii) result in the release of all or substantially all of the Collateral other than in accordance with Section 10.7(b) (Concerning the Collateral and the Collateral Documents). 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 Agreement, and (z) 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. Each participant shall be entitled to the benefits of Section 2.15 (Capital Adequacy) and Section 2.16 (Taxes) and of Section 2.14(d) (Illegality) 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 Section 2.15 (Capital Adequacy), or Section 2.16 (Taxes) or Section 2.14(d) (Illegality) to the participant in the rights and obligations of any Lender (together with such Lender) any payment in excess of the amount the Borrower would have been obligated to pay to such Lender in respect of such interest had such participation not been sold.
(h) Any Issuer may at any time assign its rights and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the Borrower, the Administrative Agent, such Issuer and such Eligible Assignee. If any Issuer ceases to be a Lender hereunder by virtue of any assignment made pursuant to this Section 11.2 (Assignments and Participations), then, as of the effective date of such cessation, such Issuer's obligations to Issue Letters of Credit pursuant to Section 2.4 (Letters of Credit) shall terminate and such Issuer shall be an Issuer hereunder only with respect to outstanding Letters of Credit issued prior to such date.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more an Eligible Assignees Assignee all or a portion of its rights and obligations hereunder 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 and either outstanding Advances or Commitments); provided that (i) 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 its a Lender's rights and obligations with respect to the Revolving Loansunder this Agreement, the Swing Loans amount of the Advances and the Letters of Credit); provided, however, that:
(i) if any such assignment shall be unfunded Commitment of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or (except that this clause shall not prohibit the assignment of a Fronting Commitment as contemplated by Section 2.02 in an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 amount equal to the date of Advance that the Initial Lender would have made but for such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to ) and (ii) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Note subject to such assignment and, except in the case of an assignment by the Initial Lender, a processing and recordation fee of $3,500. Notwithstanding the foregoing, nothing in this Section shall be construed to prohibit the assignment of a proportionate part of all of the assigning Lender's rights and obligations in respect of (A) Advances separately from (or without assigning) Commitments, (B) Commitments separately from (or without assigning) Advances, (C) Tranche A Commitments or Tranche A Advances separately from (or without assigning) Tranche B Commitments or Tranche B Advances or (D) Tranche B Commitments or Tranche B Advances separately from (or without assigning) Tranche A Commitments or Tranche A Advances. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis Agreement, such Lender shall upon such assignment 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: (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, 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 and the Intercreditor 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 and the Collateral 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 and the Collateral 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 and the Intercreditor Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or the “Register”"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, the Lenders Collateral Agent and the Issuers shall Lenders may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Assumption AgreementNotes 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 written notice thereof to the Borrower. Within five Business Days after its receipt of such notice and at the request of such assignee Lender, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for any surrendered Note a new Note to the order of such 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 unless date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A.
(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 is entered in and the Register in due course.Note or Notes held by it); provided that (i) such
Appears in 1 contract
Assignments and Participations. (a) The Borrowers may not assign or transfer any of their rights under this Agreement, the Promissory Notes or the other Loan Documents without the prior written consent of the Agents and the Lenders, and any such assignment or transfer without the Agents and the Lenders' prior written consent shall be null and void.
(b) Each Lender may 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 Revolving Loans, the Swing Revolving Loans and the Letters of CreditL/C Participations); provided, however, that:
that (i) if any such assignment shall be of the assigning Lender’s 's Revolving Loans or Revolving Credit Outstandings and Revolving Credit CommitmentCommitment or any related L/C Participation, such assignment shall cover the same percentage of such Lender’s 's Revolving Credit Outstandings Loans and Revolving Credit Commitment;
Commitment and L/C Participations, (ii) the aggregate amount 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 (if less than the Assignor’s assigning Lender's entire interest) be less than $5,000,000 or an integral multiple and, 105 unless such assigning Lender is assigning its entire interest, the aggregate amount retained by any such assigning Lender (determined as of such date) shall in no event be less than $1,000,000 5,000,000, except, in excess thereofeither case, except (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
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 the prior consent of the Administrative Agent, each Issuer Agents and the Borrower Harvard (which consents consent of Harvard 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 during the continuance of a Default or an Event of Default shall have occurred and be continuingDefault.
(bc) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and AcceptanceTransfer Agreement, together with any Promissory Note (if the assigning Lender's Loans are evidenced by a Promissory Note) subject to such assignment, and if any Revolving Loan or Revolving Credit Commitment is involved, shall at the same time deliver a copy to the Issuing Bank. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in subject to any consents required pursuant to the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) preceding subparagraph), from and after the effective date specified in such Assignment and AcceptanceTransfer Agreement, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and AcceptanceTransfer Agreement, have the rights and obligations of a Lender, Lender and if such Lender were an Issuer, of such Issuer hereunder and thereunder, L/C Participant and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and AcceptanceTransfer Agreement, relinquish its rights (except those which that survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance Transfer Agreement covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(cd) The Administrative Agent shall maintain at its address referred to in Section 11.8 Paragraph 13.6 a copy of each Assignment and Acceptance Transfer Agreement delivered to and accepted by it and a register for the recording of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of and principal amount of the Loans and, where applicable, Revolving Loans, Swing Loans and Letter Credit Percentage of Credit L/C Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or "). Any assignment pursuant to this Paragraph 13.14(d) shall not be effective until such assignment is recorded in the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, purposes absent manifest error, and each party to any of the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall Documents may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, such for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and Borrowers, the Facility Agents Guarantors, the Agents, the Issuing Bank or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Notwithstanding anything to the contrary contained in the preceding subparagraph of this Paragraph 13.14, the Loans (including the Promissory Notes evidencing the Loans) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to the Loans shall be transferable only upon notation of such transfer in the Register. No Revolving A Promissory Note shall only evidence a Lender's or an assignee's right title and interest in and to the related Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor and in no event is any Assignment and Acceptance or Assumption Agreement, shall such Promissory Note to be effective unless it is entered in the Register in due course.considered a bearer instrument or
Appears in 1 contract
Sources: Secured Debtor in Possession Financing Agreement (Harvard Industries Inc)
Assignments and Participations. (a) Each Lender may sellmay, transferupon obtaining the prior written consent of the Agent (which consent shall not be unreasonably withheld or delayed), negotiate or assign to one or more Eligible Assignees Lenders or other financial institutions all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCommitment, the Swing Loans owing to it and the Letters of CreditNote or Notes held by it); provided, however, that:
that (i) if any each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender▇▇▇▇▇▇’s Revolving Credit Outstandings rights and Revolving Credit Commitmentobligations so assigned, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount of the Commitment or Loans 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 may be in no event (if less than the Assignoramount of such ▇▇▇▇▇▇’s entire interest) Commitment or the entire principal amount of such ▇▇▇▇▇▇’s Loans but otherwise shall not be less than $5,000,000 or 10,000,000 and shall be an integral multiple of $1,000,000 unless 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 Agent for its acceptance and recording in excess thereofthe Register, except an Assignment and Acceptance and (IB) deliver to the Agent a processing and recordation fee of $3,500; provided that the Agent may, in its sole discretion, elect to waive such processing and recording fee, (v) if no Event of Default under Section 6.01(a), Section 6.01(b), Section 6.01(d) (with respect to an Event of Default under Section 5.03 only) or Section 6.01(f) has occurred and is continuing, the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or (IIdelayed) if such shall be required for an assignment is being made to by a Lender or to an Affiliate or Approved Fund of such Lender; and
(iii) if such Eligible Assignee assignee which is not, prior to the date of such assignment, not a Lender or an Affiliate or Approved Fund of a Lender, ; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall be subject object thereto by written notice to the prior Agent within ten (10) Business Days after having received notice thereof, and (vi) consent of the Administrative Agent, each Issuer and the Borrower (which consents 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 Agent shall not be required for any an assignment occurring when any Event by a Lender to an assignee which is a Lender or an Affiliate or Approved Fund of Default shall have occurred and be continuing.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptancea Lender. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, which effective date shall be at least two (i2) Business Days after the assignee thereunder shall become a party hereto andexecution thereof, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis 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: (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) 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 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 a Lender.
(c) The Administrative Agent Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its address referred to in Section 11.8 Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansLoans owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The Agent (or its designee) shall also reflect in the Register the transfer of any portion of any Lender’s interest in any Loans 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 Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving LoanThe Obligations are registered obligations and the right, Swing Loantitle and interest of any Lender 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), Letter 871(h)(2) and 881(c)(2) of Credit Obligationthe Internal Revenue Code and any related Treasury Regulations and solely for this purpose, Reimbursement Obligation, nor any the Agent (or its designee) shall be the Borrower’s agent for purposes of maintaining the Register and notations of transfer in the Register.
(d) Upon its receipt of an Assignment and Acceptance or Assumption Agreement, shall be effective unless executed by an assigning Lender and an assignee representing that it is entered 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. 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 Borrower, the Agent and the assignee and (B) the Lender required to make such assignment need not be a party thereto in due courseorder 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 Lender, provided, further that any such documents shall be without recourse to or warranty by the parties thereto.
(e) Each Lender may sell participations to one or more Lenders or other entities (other than a Defaulting Lender) 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 Loans owing to it and 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 and the maker of any Loan 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) any agreement between such Lender and any participant in connection with such participating interest shall not restrict such ▇▇▇▇▇▇’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 Loan or postponement of any date fixed for payment thereof. 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 obligations under this Agreement (the “Participant Register”); provided that no Lender 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 or its other obligations under this Agreement) 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 U.S. 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 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 Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section 9.08; provided that such participant (i) 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 (ii) shall not be entitled to receive any greater payment under Sections 2.15 or 2.20, with respect to any participation, than its participating Lender 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 Lender at any time may pledge or assign a security interest in any of its rights (including, without limitation, rights to payments of principal of and/or interest on the Loans) under this Agreement, including any pledge or assignment to secure obligations to any Federal Reserve Bank or any central bank having jurisdiction over such Lender, without notice to or consent of the Borrower, any other Lender or the Agent; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
Appears in 1 contract
Sources: Term Credit Agreement (Ecolab Inc.)
Assignments and Participations. (a) Each Lender The Company acknowledges and agrees that a Bank may sell, transfer, negotiate or assign to one or more Eligible Assignees at any time grant participations in all or a any portion of its rights pro rata share of the Loans and obligations hereunder (including all Letters of Credit or of its rights right, title and obligations with respect interest therein or in or to the Revolving Loansthis Agreement (collectively, the Swing Loans and the Letters of Credit"Participations") to any other lending office or to any other bank or lending institution ("Participants"); provided, however, that:
: (i) if any such assignment all amounts payable by the Company shall be of the assigning Lender’s Revolving Credit Outstandings determined as if such Bank had not granted such Participation; and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned any agreement pursuant to each which any Bank may grant a Participation: (x) shall provide that such assignment (determined as Bank shall retain the sole right and responsibility to enforce the obligations of the date Company hereunder including, without limitation, the right to approve any amendment, modification or waiver of the Assignment and Acceptance with respect any provisions of this Agreement; (y) may provide that such Bank will not agree to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than $5,000,000 any modification, amendment or an integral multiple waiver of $1,000,000 in excess thereof, except (I) with this Agreement without the consent of the Borrower and the Administrative Agent or (II) Participant if such assignment is being made to a Lender amendment, modification or an Affiliate waiver would reduce the principal of or Approved Fund rate of interest on the Loan or postpone the date fixed for any payment of principal of or interest or fees on the Loan or extend the expiration date of any Letter of Credit or amend the amount of the Commitment or Commitment Percentage of such LenderBank; and
and (iiiz) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents shall not be unreasonably withheld or delayed); and providedrelieve such Bank from its obligations, furtherwhich shall remain absolute, 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 continuingto make advances hereunder.
(b) The parties Except as otherwise provided in subSection (a), no Bank may assign, sell, or transfer all or any portion of its pro rata share of the Loans or any Note or Letter of Credit or of its right, title or interest therein or in or to each assignment shall execute this Agreement, to any other bank or lending institution without execution by the assignee Bank of an Assignment Agreement in form and deliver substance reasonably satisfactory to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register Company and the receipt by the Administrative Agent from the assignee Banks, and payment of an assignment fee by the assigning Bank to the Agent in the amount of $3,500 (other than 2,500. In no event shall any such assignment, sale or transfer be in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and aggregate principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due courseless than $2,500,000.
Appears in 1 contract
Sources: Revolving Credit Agreement (Universal Health Realty Income Trust)
Assignments and Participations. (a) 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 and their respective successors and assigns; provided, 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 Lenders’ prior written consent shall be null and void.
(b) Each Lender may sellwith the written consent of the Administrative Agent and, transferunless an Event of Default has occurred and is continuing, negotiate the Borrower (no such consents to be unreasonably withheld or delayed), assign to one or more Eligible Assignees other lenders or other entities all or a portion of its rights and obligations hereunder (including all of its rights and obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment and the Revolving Loans, the Swing Loans and the Letters of Credit)made by it; provided, however, that:
that (i) if any such assignment shall be is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage remainder of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
) (iiexcept such minimum amount shall not apply to an assignment by a Lender to (x) a Lender, 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 being to be assigned pursuant to each all such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than new Lenders is at least $5,000,000 or an integral a multiple of $1,000,000 in excess thereof), (ii) except (I) with as provided in the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision last sentence of this Section 11.212.07(b), the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)acceptance, an Assignment and Acceptance. Upon , together with any promissory note subject to such execution, delivery, acceptance assignment and recording in the Register and the receipt by such parties shall deliver to the Administrative Agent from Agent, for the assignee benefit of an assignment the Administrative Agent, a processing and recordation fee in the amount of $3,500 (other than except the payment of such fee shall not be required in the case of connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender); and, after receipt of such Assignment and Acceptance, the Administrative Agent shall notify the Borrower of the same with reasonable promptness (except such notice 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), (iii) no Lender shall assign any portion of its Revolving Loans or Revolving Credit Commitments to any Person that is identified in writing to the Administrative Agent on or prior to the Effective Date in the Fee Letter as an “Excluded Assignee/Participant” (it being agreed and understood that this clause (iii) shall not prohibit assignments by any Lender to any of its Affiliates or Related Funds or to any other Lender); (iv) no Lender shall assign any portion of its Revolving Loans or Revolving Credit Commitments to any Person that is a direct competitor of a Loan Party or has a controlling equity interest in, or is under common control with, a direct competitor of a Loan Party (it being agreed and understood that (x) for purposes of this clause (iv), a direct competitor of a Loan Party shall mean a Person that, as a material part of its business, manufactures or distributes Products, and (y) this clause (iv) shall not prohibit assignments by any Lender to any of its Affiliates or Related Funds, to any other Lender or to any commercial bank), and (v) no written consent of the Administrative Agent or their respective Affiliates) the Borrower shall be required in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender. Upon such execution, delivery and acceptance, from and after the effective date specified in such each Assignment and Acceptance, which effective date shall be at least three (i3) Business Days after the delivery thereof to the Administrative Agent (or such shorter period as shall be agreed to by the Administrative Agent and the parties to such assignment), (A) the assignee thereunder shall become a party hereto “Lender” hereunder and, in addition to the extent that rights and obligations under the Loan Documents have been assigned hereunder held by it immediately prior to such assignee pursuant to such Assignment and Acceptanceeffective date, have the rights and obligations of a Lender, hereunder that have been assigned to it pursuant to such Assignment and if such Lender were an Issuer, of such Issuer hereunder and thereunder, Acceptance and (iiB) the assignor assigning Lender thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto). Notwithstanding anything to the contrary contained in this Section 12.07(b), a Lender shall not assign all or any portion of its rights or obligations under this Agreement to any Loan Party, any Affiliate of any Loan Party, the Sponsor or any Affiliate of the Sponsor. Notwithstanding anything to the contrary contained in this Section 12.07(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 Agents or to any other Person (a “Related Party Assignment”); provided, that (I) the Borrower and the Administrative Agent may continue to deal solely and directly with such assigning Lender until an Assignment and Acceptance has been delivered to the Administrative Agent for recordation on the Register, (II) the Collateral Agent may continue to deal solely and directly with such assigning Lender until receipt by the Collateral Agent of a copy of the fully executed Assignment and Acceptance pursuant to Section 12.07(e), (III) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Agents shall not affect the legality, validity, or binding effect of such assignment, and (IV) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date specified in such Assignment and Acceptance and recorded on the Related Party Register (as defined below).
(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 Administrative Agent shall maintain shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain, or cause to be maintained at its address referred to in Section 11.8 the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recording recordation of the names and addresses of the Lenders and the Issuers, the Revolving Credit Commitments of of, and the principal amount of the Revolving Loans (and stated interest thereon) (the “Registered Loans, Swing Loans ”) and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (time. Subject to the “Revolving Credit Facility Register” or penultimate sentence of this Section 12.07(d), the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agents and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving In the case of an assignment pursuant to the last sentence of Section 12.07(b) as to which an Assignment and Acceptance is not delivered to the Administrative Agent, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register (the “Related Party Register”) comparable to the Register on behalf of the Borrower. The Related Party Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Borrower pursuant to Section 12.07(b) (which consent of the Administrative Agent must be evidenced by the Administrative Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, 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 or the Related Party 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 or the Related Party 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 on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(g) In the event that any Lender sells participations in a Registered Loan, Swing Loansuch Lender shall, acting for this purpose as a non-fiduciary agent of the Borrower, maintain 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 Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Any Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.08(d), (f) and (g).
(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 Revolving Credit Commitments, the Revolving Loans made by it and its Pro Rata Share of the Letter of Credit ObligationObligations); provided, Reimbursement Obligationthat (i) such Lender’s obligations under this Agreement (including without limitation, nor its Revolving Credit 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; (iii) a participant shall not be entitled to require such Lender to take or omit to take any Assignment and Acceptance action hereunder except (A) action directly effecting an extension of the maturity dates or Assumption decrease in the principal amount of the Revolving Loans or Letter of Credit Obligations, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Revolving 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 10.11 of this Agreement or any other Loan Document); (iv) no Lender shall participate any portion of its Revolving Loans or Revolving Credit Commitments to any Person that is identified in writing to the Administrative Agent on or prior to the Effective Date in the Fee Letter as an “Excluded Assignee/Participant” (it being agreed and understood that this clause (iv) shall not prohibit participations by any Lender to any of its Affiliates or Related Funds or to any other Lender); and (v) no Lender shall participate any portion of its Revolving Loans or Revolving Credit Commitments to any Person that is a direct competitor of a Loan Party or has a controlling equity interest in, or is under common control with, a direct competitor of a Loan Party (it being agreed and understood that (x) for purposes of this clause (v), a direct competitor of a Loan Party shall mean a Person that, as a material part of its business, manufactures or distributes Products, and (y) this clause (v) shall not prohibit participations by any Lender to any of its Affiliates or Related Funds, to any other Lender or to any commercial bank). The Loan Parties agree that each participant shall be effective entitled to the benefits of Section 2.08 and Section 4.05 of this Agreement with respect to its participation in any portion of the Revolving Credit Commitments and the Revolving Loans as if it was a Lender; provided, that a participant shall not be entitled to receive any greater payment under Sections 2.08 or 4.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, unless it (I) the sale of the participation to such participant is entered made with the Borrower’s prior written consent, or (II) such entitlement to a greater payment resulted from a Change in Law after the Register in due courseparticipant became a participant.
(j) If (i) the Borrower is obligated to make any material payments under Section 2.08 and Section 4.05 to any Lender, (ii) any Lender becomes a Defaulting Lender, or (iii) any action to be taken by
Appears in 1 contract
Assignments and Participations. (a) Each Lender The 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, except that (i) the Borrower may sell, transfer, negotiate not assign or assign to one or more Eligible Assignees all or a portion otherwise transfer any of its rights and or obligations hereunder without the prior written consent of each Lender, and (including all ii) a Lender may not assign or otherwise transfer any of its rights and or obligations with respect hereunder to the Revolving Loans, the Swing Loans and the Letters of Credit)anyone other than an Eligible Assignee; provided, however, that:
(i) if any that a Lender shall provide notice of such assignment shall be to the Borrower, the Servicer, the Backup Servicer and the Deal Agent. Except in the case of an assignment to another then existing Lender, an Affiliate of a Lender, an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or Revolving Credit Outstandings and Loans, the amount of the Commitment or Revolving Credit Commitment, such Loans subject to any assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount 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 (if less than the Assignor’s entire interest) not be less than $5,000,000 10,000,000, unless the Deal Agent, and, so long as no Termination Event has occurred and is continuing or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 notany Federal Reserve Bank, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer and the Borrower otherwise consents (which consents shall each such consent not to be unreasonably withheld or delayed); . Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and provided, further, that, notwithstanding any other provision of obligations under this Section 11.2, Agreement with respect to the consent of Revolving Loans or the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing.
(b) Commitment assigned. The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Deal Agent an Assignment and Acceptance. Upon such execution, delivery, acceptance Assumption (together with a processing and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment recordation fee in the amount of $3,500 (other than 3,500; provided, that the Deal Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment) and shall provide a copy thereof to the Collateral Agent, the Servicer, the Backup Servicer and the Borrower. The assignee, if it is not a Lender, shall deliver to the Deal Agent an assignment by a Lender Administrative Questionnaire. Nothing in this Agreement, expressed or implied, shall be construed to an Affiliate of such Lender or by confer upon any Agent or Person (other than the parties hereto, their respective Affiliates) from successors and after the effective date specified in such Assignment and Acceptanceassigns permitted hereby, (i) the assignee thereunder shall become a party hereto and, or any participants to the extent that rights and obligations provided in Section 12.1(b) hereof) any legal or equitable right, remedy or claim under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, or by reason of this Agreement.
(b) Any Lender shall have the rights and obligations of right to grant participations in all or a Lender, and if such Lender were an Issuer, portion of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that Lender’s rights and and/or obligations under this Agreement have been assigned by it pursuant (including all or a portion of its Commitment and/or the Revolving Loans owing to it) to one or more other banking institutions (each such Assignment person a “Participant”), and Acceptancesuch Participants shall be entitled to the benefits of this Agreement, relinquish its rights including, without limitation, Sections 2.10 and 2.11 hereof, to the same extent as if they were a direct party hereto; provided that (except those which survive the payment in full of the Obligationsi) and be released from its such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the Loan Documents, other than those relating parties hereto for the performance of such obligations and (iii) the Borrower and the other parties hereto shall continue to events or circumstances occurring prior to deal solely and directly with such assignment (and, Lender in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning connection with such Lender’s rights and obligations under this Agreement, and provided further that no such Participant shall be entitled to receive payment hereunder of any amount greater than the Loan Documentsamount which would have been payable had such Lender not granted a participation to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. Upon the grant of a participation of any Lender’s rights and/or obligations under this Agreement, such Lender will promptly notify the Borrower of the Participant and the proportionate amount granted under such participation. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall cease have any obligation to be disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a party hereto)Participant'’s interest in any commitments, loans or its other obligations under any Transaction 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.
(c) The Administrative Agent Deal Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its address referred to offices in Section 11.8 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Lenders, and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount amounts (and stated interest) of the Revolving LoansLoans owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer pursuant to the terms hereof from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Deal Agent and the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register pursuant to the terms hereof as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents any Lender, at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.
Appears in 1 contract
Sources: Loan and Security Agreement (Credit Acceptance Corp)
Assignments and Participations. (a) Each Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) if any such assignment shall be of the assigning Lender’s 's Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s 's Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereofthereof and after giving effect to such assignment the assigning Lender holds Revolving Credit Outstandings and Revolving Credit Commitments of at least $5,000,000, except in either case (IA) the entire amount held by the assigning Lender is assigned or (B) with the consent of the Borrower and the Administrative Agent or (IIC) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
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 the prior consent of the Administrative Agent, each Issuer Agent and the Borrower (which consents 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.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and Acceptance, together with any Revolving Credit Note (if the assigning Lender's Loans are evidenced by a Revolving Credit Note) subject to such assignment. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a LenderLender and, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, thereunder and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such SECOND AMENDED AND RESTATED CREDIT AGREEMENT AVIALL SERVICES, INC. Assignment and Acceptance, relinquish its rights (except for those which survive surviving the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 (Notices, Etc.) 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or "). Any assignment pursuant to this Section 11.2 shall not be effective until such assignment is recorded in the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and Borrower, the Facility Agents 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 (c) , the Loans (including the Revolving Credit Notes evidencing such Loans) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Loans shall be transferable only upon notation of such transfer in the Register. No A Revolving Credit Note shall only evidence the Lender's or an assignee's right title and interest in and to the related Loan, Swing Loanand in no event is any such Revolving Credit Note to be considered a bearer instrument or obligation. This Section 11.2 shall be construed so that the Loans are at all times maintained in "registered form" within the meaning of Sections 163(f), Letter 871(h)(2) and 881(c)(2) of Credit Obligationthe 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, Reimbursement Obligation, nor any 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 or Assumption Agreementexecuted by an assigning Lender and an assignee, shall be effective unless it is entered 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 the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall, if requested by such assignee, execute and deliver to the Administrative Agent, new Revolving Credit Notes to the order of such assignee in due coursean amount equal to the Revolving Credit Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Revolving Credit Note for exchange in connection with the assignment and has retained Revolving Credit Commitments hereunder, new Revolving Credit Notes to the order of the assigning Lender in an amount equal to the Revolving Credit Commitments retained by it hereunder. Such new Revolving Credit Notes shall be dated the same date as the surrendered Revolving Credit Notes and be in substantially the form of Exhibit B (Form of Revolving Credit Note).
(f) In addition to the other assignment rights provided in this Section 11.2, each Lender may (i) grant to a Special Purpose Vehicle the option to make all or any part of any 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 Loans pursuant thereto shall satisfy (once 100 SECOND AMENDED AND RESTATED CREDIT AGREEMENT AVIALL SERVICES, INC. and to the extent that such Loans are made) the obligation of such Lender to make such Loans thereunder, provided, however, that nothing herein shall constitute a commitment or an offer to commit by such a Special Purpose Vehicle to make Loans hereunder and no such Special Purpose Vehicle shall be liable for any indemnity or other Obligation (other than the making of 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 (including rights to payments of principal or interest on the Loans) to (x) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrower or the Administrative Agent, (y) any trustee for the benefit of the holders of such Lender's Securities and (z) to any Special Purpose Vehicle to which such Lender has granted an option pursuant to clause (i) above; and provided, further, that no such assignment or grant shall release such Lender from any of its obligations hereunder except as expressly provided in clause (i) above. The parties hereto acknowledge and agree 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, it will 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 Revolving Loans and Letters of Credit). 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 any Loan Party 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 Loan Parties), except if any such amendment, waiver or other modification or consent would (i) 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 (ii) result in the release of all or substantially all of the Collateral other than in accordance with Section 10.8(b) (Concerning the Collateral and the Collateral Documents). 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 Agreement and (z) 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. Each participant shall be entitled to the benefits of Section s 2.15 (Capital Adequacy) and 2.16 (Taxes) and of Section 2.14(d) (Special Provisions Governing Eurodollar Rate Loans) 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 Section 2.15 (Capital Adequacy) or 2.16 (Taxes) or Section 2.14(d) (Special Provisions Governing Eurodollar Rate Loans) 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 been obligated to pay to such Lender in respect of such interest had such participation not been sold.
(h) Any Issuer may at any time assign its rights and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the Borrower, the Administrative Agent, such Issuer and such Lender. If any Issuer ceases to be a Lender SECOND AMENDED AND RESTATED CREDIT AGREEMENT AVIALL SERVICES, INC. hereunder by virtue of any assignment made pursuant to this Section 11.2, then, as of the effective date of such cessation, such Issuer's obligations to Issue Letters of Credit pursuant to Section 2.4 (Letters of Credit) shall terminate and such Issuer shall be an Issuer hereunder only with respect to outstanding Letters of Credit issued prior to such date.
Appears in 1 contract
Sources: Credit Agreement (Aviall Inc)
Assignments and Participations. (a) Each Lender The 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, except that the Borrower may sellnot assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Bank then committed to make advances or extend letters of credit to it (other than an assignment effectuated by a merger or consolidation permitted by Section 5.2(e) to the surviving Person referred to herein). No Bank may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of this Section, transfer(ii) by way of participation in accordance with the provisions of subsection (d) of this Section, negotiate or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) or (h) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Bank may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving Loans, the Swing Loans Commitment and the Letters of CreditAdvances at the time owing to it); provided, however, that:
provided that (i) if any such except in the case of an assignment shall be of the entire remaining amount of the assigning LenderBank’s Revolving Credit Outstandings Commitment and Revolving Credit Commitmentthe Advances at the time owing to it, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant of the Commitment (which for this purpose includes Advances outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Advances of the assigning Bank subject to each such assignment (assignment, determined as of the date of the Assignment and Acceptance Assumption with respect to such assignmentassignment is delivered to the Administrative Agent (or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall in no event (if less than the Assignor’s entire interest) not be less than $5,000,000 10,000,000 (or an integral multiple of $1,000,000 in excess thereofits remaining commitments, except (Iif less) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent unless each of the Administrative Agent, each Swingline Lender and each L/C Issuer and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consent (which consents shall each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank’s rights and provided, further, that, notwithstanding any other provision of obligations under this Section 11.2, Agreement with respect to the consent of Advances or the Borrower shall not be required for Commitment assigned; (iii) any assignment occurring when any Event of Default shall have occurred a Commitment must be approved by the Administrative Agent and each L/C Issuer, in each case (1) such approval not to be continuing.
unreasonably withheld, delayed or conditioned and (b2) The unless the Person that is the proposed assignee is itself a Bank or an Affiliate of a Bank (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties to each assignment shall (1) execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Agent an Assignment and Acceptance. Upon such executionAssumption or (2) to the extent applicable, delivery, acceptance an agreement incorporating an Assignment and recording in the Register and the receipt Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent from and the assignee of an assignment parties to the Assignment and Assumption are participants, together with a processing and recordation fee in the amount of $3,500 and the Eligible Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an administrative questionnaire and shall deliver to the Borrower, all relevant information for notices under the Loan Documents to such assignee; provided that for the purposes of the forgoing clauses (other than in the case b)(i) and (b)(iii), no consent of an assignment by a Lender to an Affiliate of such Swingline Lender or by any L/C Issuer shall be required if (x) an Event of Default occurs with respect to the Borrower under Section 6.1(e) and (y) (A) with respect to such Swingline Lender, it has no outstanding Swingline Loans at that time or (B) with respect to such L/C Issuer, it has no outstanding Letters of Credit at that time. Subject to the foregoing clauses (b)(i) through (b)(iv), the Administrative Agent or their respective Affiliates) shall record such assignment and, from and after the effective date specified in such each Assignment and AcceptanceAssumption, (i) the assignee Eligible Assignee thereunder shall become be a party hereto to this Agreement and, to the extent that rights and obligations under of the Loan Documents have been interest assigned to such assignee pursuant to by such Assignment and AcceptanceAssumption, have the rights and obligations of a LenderBank under this Agreement, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor assigning Bank thereunder shall, to the extent that rights and obligations under this Agreement have been of the interest assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or of the remaining portion of an assigning LenderBank’s rights and obligations under the Loan Documentsthis Agreement, such Lender Bank shall cease to be a party heretohereto but shall continue to be entitled to the benefits of Sections 2.11, 2.14, and 8.4 with respect to facts and circumstances occurring while such Person was a Bank prior to the effective date of such assignment). Upon written request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Bank. Any assignment or transfer by a Bank of rights or obligations under this Agreement that does not comply with this subsection (b) shall be null and void.
(c) The Administrative Agent Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its address referred to in Section 11.8 the Payment Office a copy of each Assignment and Acceptance Assumption delivered to and accepted or otherwise recorded by it and it. The Administrative Agent shall maintain a register for the recording recordation of the names and addresses of the Lenders Banks and the IssuersCommitments of, the Revolving Credit Commitments of and principal amount amounts of the Revolving LoansAdvances and L/C Obligations owing to, Swing Loans and Letter of Credit Obligations (specifying each Bank pursuant to the Reimbursement Obligations) owing to each Lender and each Issuer terms hereof from time to time (the “Revolving Credit Facility Register” or the each, a “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposesconclusive, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, the Lenders Agent and the Issuers Banks shall treat each Person whose name is recorded in a Register pursuant to the Revolving Credit Facility Register terms hereof as a Lender or as an Issuer, as the case may be, Bank hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Revolving Credit Facility Each Register shall be available for inspection by the Borrower and the Facility Agents any Bank, at any reasonable time and from time to time upon reasonable prior notice.
(d) Any Bank may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, any L/C Issuer or Swingline Lender, sell participations to any Person (other than a natural person or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Bank’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Advances (including such Bank’s participations in L/C Obligations) and stated interest owing to it); provided 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 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. No Revolving LoanAny agreement or instrument pursuant to which a Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce, Swing Loanand to participate in any related decision to enforce, Letter this Agreement and to approve any amendment, modification or waiver of Credit Obligationany provision of this Agreement; provided that such agreement or instrument may provide that such Bank will not, Reimbursement Obligationwithout the consent of the Participant, nor agree to any Assignment and Acceptance amendment, waiver or Assumption Agreementother modification described in clause (b), (c), or (d) of the first proviso to Section 8.1 that directly affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be effective unless entitled to the benefits of Sections 2.11, 2.14, and 8.4(b) if it is entered actually incurs any loss or expense pursuant to such sections, and then, solely to the same extent as if it were the Bank from which it had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.5(b) as though it were a Bank, provided such Participant agrees to be subject to Section 2.15 as though it were a Bank. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in due courseany commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) A Participant shall not be entitled to receive any greater payment under Section 2.6, Section 2.7, Section 2.11, Section 2.14 or Section 8.4(b) than the applicable Bank would have been entitled to receive with respect to the participation sold to such Participant, unless the Borrower shall expressly agree otherwise in writing. A Participant that would be a Foreign Bank if it were a Bank shall not be entitled to the benefits of Section 2.14 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 Sections 2.14, 2.15 and 8.18 as though it were a Bank.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Bank to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledgee or assignee for such Bank as a party hereto.
(g) As used herein, the following terms have the following meanings:
Appears in 1 contract
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees banks or other entities all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving LoansCommitment, the Swing Loans Advances owing to it and the Letters of CreditNote or Notes held by it); provided, however, that:
that each such assignment shall be to an Eligible Assignee 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 Acceptance, 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 Cdn.$3,500, and shall send to the Borrowers an executed counterpart of such Assignment and Acceptance, and provided further, however, that (i) if any except in the case of an assignment to a Lender Affiliate, each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a constant, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of all such Lender’s Revolving Credit Outstandings 's rights and Revolving Credit Commitment;
obligations under this Agreement, (ii) the aggregate amount of the Commitment of the assigning Lender being assigned to the assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) must be equal to or greater than Cdn.$10,000,000, or if less, the entire 77 amount of such assigning Lender's "Commitment" (unless the Borrowers and the Administrative Agent shall in no event (if less than the Assignor’s entire interestotherwise consent, which consent may be withheld for any reason) and must be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereofCdn.$1,000,000, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than except in the case of an assignment by a Schedule II Lender to an a Lender Affiliate thereof that is a Schedule III Bank, 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 or Affiliate shall fail to do so. Upon the execution, delivery, acceptance and recording of each Assignment and Acceptance by any Agent or their respective Affiliates) the parties thereto, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, subject to clause (iii) above, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder(y) except in the circumstances contemplated in clause (iii) above, and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto), provided, however, such assigning Lender shall retain any claim with respect to any fee, interest, cost, expense or indemnity which accrues, or relates to an event that occurs, prior to the date of such assignment pursuant to Section 2.03, 2.06, 2.12, 2.13, 2.16 or 9.04.
(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 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 Borrowers or Parent or the performance or observance by the Borrowers or Parent of any of their respective 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 (subject to approval in writing by the Borrowers 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 11.8 9.02 a copy of each Assignment and Acceptance Acceptance, each New Lender Agreement and each Commitment Increase Agreement delivered to and accepted by it and a register (which register may be in electronic form) for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”"REGISTER"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrowers, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the either Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreement, shall be effective unless executed by an assigning Lender and an assignee representing that it is entered 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 Borrowers. Within five Business Days after its receipt of such notice and its receipt of an executed counterpart of such Assignment and Acceptance, the applicable Borrower, at its own expense, shall execute and deliver to the Administrative Agent in due courseexchange for any surrendered Note or Notes new Notes evidencing Advances made to such Borrower to the order of such Eligible Assignee and, if the assigning Lender has retained a Commitment hereunder, new Notes 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 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 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 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, (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 Borrowers or Parent of their respective 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.
(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 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 in writing for the benefit of the Borrowers to preserve the confidentiality of any confidential information relating to the Borrowers received by it from such Lender in a manner consistent with Section 9.08.
(g) Anything in this Agreement to the contrary notwithstanding, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Advances owing to it) and the Notes, if any, issued to it hereunder in favor of any United States Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System of the United States (or any successor regulation) and the applicable operating circular of such Federal Reserve Bank.
Appears in 1 contract
Sources: Canadian Credit Agreement (Burlington Resources Inc)
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees (other than to any Disqualified Institution) 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:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
Commitments, (ii) the aggregate amount 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 (if less than the Assignorassignor’s entire interest) be less than (x) in the case of Revolving Credit Outstandings and Revolving Credit Commitments, $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the case of Term Loans, $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
a Lender (other than any Disqualified Institution), (iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a LenderLender (other than any Disqualified Institution), such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer Agent and the Borrower (which consents shall not be unreasonably withheld or delayed)) and (iv) if such Eligible Assignee is not, prior to the date of such assignment, a Revolving Credit Lender or an Affiliate of a Revolving Credit Lender, any such assignment with respect to Revolving Credit Outstandings and Revolving Credit Commitments shall be subject to the prior consent of each Issuer and Swing Lender; and provided, however 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 5 Business Days after having received notice thereof; 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 under Section 9.1(a), (b) or (f) (Events of Default) shall have occurred and be continuingcontinuing and (v) no Revolving Credit Commitments or Revolving Loans may be assigned to any Affiliated Lender. Any such assignment need not be ratable as among the Term Loan Facility 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 (as defined in clause (c) below)Register, an Assignment and Acceptance, together with any Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreementand, shall be effective unless it is entered other than in the Register in due course.respect of assignments made pursuant to Section 2.17(b) (Mitigation Obligations; Substitution of Lenders) and Section 11.1(c)
Appears in 1 contract
Sources: Credit Agreement (Amc Entertainment Holdings, Inc.)
Assignments and Participations. (a) Each Any Lender may sell, transfer, negotiate or assign and delegate to one or more assignees (each an “Assignee”) that are Eligible Assignees all Transferees all, or a portion any ratable part of its all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $1,000,000 (including all except such minimum amount shall not apply to an assignment and delegation by a Lender to (i) any other Lender or an Affiliate of its rights and obligations with respect such Lender or (ii) a group of new Lenders, each of which is an Affiliate of each other so long as the aggregate amount to the Revolving Loans, the Swing Loans and the Letters of Creditbe assigned to such group is at least $1,000,000); provided, however, that:
, except as otherwise provided in Section 14.1(c) hereof, the Borrowers and the Agents may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage written notice of such Lender’s Revolving Credit Outstandings assignment, together with payment instructions, addresses, and Revolving Credit Commitment;
(ii) the aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance related information with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereofAssignee, except (I) with have been given to the consent of the Borrower Revolving Agent and the Administrative Agent or by such Lender and the Assignee, (IIii) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
(iii) if such Eligible and its Assignee is not, prior have delivered to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), Revolving Agent an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in (iii) the Register and assigning Lender or Assignee has paid to the receipt by Revolving Agent for the Administrative Agent from the assignee of an assignment Revolving Agent’s separate account a processing fee in the amount of $3,500 3,500. 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 if (x) such assignment is in connection with any merger, consolidation, sale, transfer, or other than in disposition of all or any substantial portion of the case business or loan portfolio of an assignment by the assigning Lender or (y) the Assignee is a Lender to or an Affiliate of such Lender or by any Agent or their respective Affiliatesa Lender.
(b) Except as otherwise provided in Section 14.1(c) hereof, from and after the effective date specified in such that the Revolving Agent notifies the assigning Lender (with a copy to the Administrative Agent and the Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced processing fee (if required), (i) the assignee Assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunderunder the Loan Documents, and (ii) the assignor thereunder assigning Lender shall, to the extent that rights and obligations hereunder and under this Agreement the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligationswith respect to Section 11.3 or Section 16.7) and be released from its any future obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party heretohereto and thereto), and such assignment shall effect a novation between the Borrowers 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 14 and Section 17.7 of this Agreement.
(c) The Administrative Notwithstanding anything contained in this Section 14.1 to the contrary, a Lender may assign any or all of its rights hereunder to an Affiliate of such Lender so long as such Affiliate is exempt from United States withholding taxes in respect of interest paid or accrued on the Obligations, without (i) providing any notice to any Agent or any other Person or (ii) delivering an executed Assignment and Acceptance to any Agent; provided, however, that (x) the Borrowers and the Agents may continue to deal solely and directly with the assigning Lender until an Assignment and Acceptance has been delivered to the Revolving Agent, (y) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Revolving Agent or any other Person shall maintain at not affect the legality, validity or binding effect of such assignment, and (z) an Assignment and Acceptance between an assigning Lender and its address referred Affiliate shall be effective as of the date specified in such Assignment and Acceptance.
(d) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 Section 11.8 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 Loan 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 Borrowers or the performance or observance by the Borrowers of any of their 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, together with 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 appoints and authorizes each Agent to take such actions 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 all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(e) Immediately upon the Revolving Agent’s receipt of any processing fee payment (if required) and the fully executed Assignment and Acceptance delivered (or, in the case of an assignment from a Lender to one or more of its Affiliates pursuant to Section 14.1(c), upon the effective date specified in such Assignment and accepted Acceptance), 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(f) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, the Commitment, 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 Commitments, and the other rights and interests of the Originating Lender hereunder shall not 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 Borrowers, the Agents, 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 Originating 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 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 Collateral or guaranties (except to the extent expressly provided herein or in any 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 such Participant through such Lender, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by the Borrowers 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, Agents, Borrowers, the Collections of Borrowers or their Subsidiaries, the Collateral, 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. The provisions of this Section 14.1(f) are solely for the benefit of the Lender Group, and the Borrowers shall not have any rights as third party beneficiaries of any such provisions.
(g) In connection with any such assignment or participation or proposed assignment or participation, a Lender may, subject to the provisions of Section 17.7, disclose all documents and information which it now or hereafter may have relating to the Borrowers and their Subsidiaries and their respective businesses.
(h) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Board in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR § 203.24 or any other Person, and such Person may enforce such pledge or security interest in any manner permitted under applicable law; provided, however, that no such pledge or grant of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or secured party (or any transferee thereof) for such Lender as a party hereto unless such pledgee or secured party (or transferee) becomes a Lender hereunder.
(i) The Revolving Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained, a register for (the recording of “Register”) on which it shall enter the names and addresses of the Lenders and the IssuersCommitments of, and the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans Advances and Letter the Term Loan (and stated interest thereon) and Obligations with respect to Letters of Credit Obligations (specifying the Reimbursement Obligations) owing to to, each Lender and each Issuer from time to time (time. Subject to the “Revolving Credit Facility Register” or last sentence of this Section 14.1(i), the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrowers, the Administrative Agent, Agents and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Administrative Borrower and any Agent or any Lender at any reasonable time and from time to time upon reasonable notice.
(j) 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 Revolving Agent and the Borrowers 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, notwithstanding notice to the contrary.
(k) In the event that a Lender sells participations in the Registered Loan, such Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain 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 the Facility Agents at any reasonable time and from time to time upon reasonable notice.
(l) Notwithstanding anything contained in this Agreement to the contrary, so long as no Event of Default has occurred and is continuing, no Lender may assign or participate all or any portion of its Advances or Commitments or otherwise assign any or all of its rights hereunder to any Person organized under the laws of a Tier 3 or 4 Country absent prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment review and Acceptance or Assumption Agreement, shall be effective unless it is entered in approval by the Register in due courseDSS.
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Assignments and Participations. (a) Each Lender may sellmay, transferwith notice to and the consent of the Administrative Agent and the Borrower (such consents not to be unreasonably withheld, negotiate or provided that it shall not be deemed to be unreasonable for the Borrower to withhold such consent if such assignment would at the time of such assignment impose upon the Borrower an obligation to make any payment under Section 2.14), assign to one or more Eligible Assignees banks or other entities all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving Loans, the Swing Loans Commitment and the Letters of CreditAdvances owing to it); provided, howeverthat no such consent shall be required in the case of an assignment by any Lender to another Lender; and provided further, that:
(i) if any each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;Lender under this Agreement,
(ii) except in the aggregate case of an assignment by a Lender to one of its Affiliates or to another Lender, the amount of the 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 (if less than unless the Assignor’s entire interestBorrower and the Administrative Agent otherwise agree) be less than the lesser of (x) such Lender’s Commitment hereunder and (y) $5,000,000 10,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of the Borrower and the Administrative Agent or (II) 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, each such assignment shall be subject to the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.an Eligible Assignee,
(biv) The the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, and
(v) the parties to each such assignment (other than the Borrower) shall deliver to the Administrative Agent a processing and recordation fee of $3,500. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance Table of Contents covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis 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: (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 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 of the obligations which 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 the Borrower and the Administrative Agent shall have consented to the relevant assignment) 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 shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of each of the Lenders and the Issuersand, with respect to Lenders, the Revolving Credit Commitments of Commitment of, and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each such Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as hereunder for the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving LoanTable of Contents
(e) Each Lender may sell participations to one or more Persons (excluding any Persons primarily engaged in the insurance or mutual fund business) in or to all or a portion of its rights and obligations under this Agreement (including, Swing Loanwithout limitation, Letter all or a portion of Credit Obligationits Commitment and the Advances owing to it); provided, Reimbursement Obligationhowever, nor any Assignment 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) the Borrower, the Administrative Agent and Acceptance or Assumption 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) in any proceeding under the Federal Bankruptcy Code in respect of the Borrower, such Lender shall remain and be, to the fullest extent permitted by law, the sole representative with respect to the rights and obligations held in the name of such Lender (whether such rights or obligations are for such Lender’s own account or for the account of any participant) and (v) no participant under any such participation agreement shall have any right to approve any amendment or waiver of any provision of this Agreement, or to consent to any departure by the Borrower therefrom, except to the extent that any such amendment, waiver or consent would (x) reduce the principal of, or interest on, the Notes, in each case to the extent the same are subject to such participation, or (y) postpone any date fixed for the payment of principal of, or interest on, the Advances, in each case to the extent the same are subject to such participation.
(f) Any Lender may, in connection with any permitted assignment or participation or proposed assignment or participation pursuant to this Section 8.06 and subject to the provisions of Section 8.12, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower or any of its Subsidiaries or Affiliates furnished to such Lender by or on behalf of the Borrower.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, without the consent of the Agent or the Borrower, create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (a “SPC”) under the Granting Lender’s control, 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 effective unless 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 no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall Table of Contents remain with the 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 is entered 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 paragraph (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 Lender or to any Eligible Assignee (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 paragraph (h) may not be amended without the written consent of the SPC.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, without the consent of the Agent or the Borrower, assign to an Affiliate of such Lender (excluding any Affiliate of such Lender primarily engaged in the Register in due courseinsurance or mutual fund business) all or any portion of its rights (but not its obligations) under this Agreement.
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Assignments and Participations. (a) Each Lender may sellmay, transfersubject to the approval of the Agent and, negotiate if no Event of Default then exists, the Borrower, which approval in each case shall not be unreasonably withheld or delayed, and, if demanded by the Borrower ((A) following a demand by such Lender pursuant to Section 2.10 or 2.13 (an “Increased Cost Lender”), (B) if such Lender is a Defaulting Lender or (C) in connection with any proposed amendment, modification, termination, waiver or consent with respect to the provisions hereof, the consent of the Required Lenders has been obtained but the consent of one or more other Lenders whose consent is required shall not have been obtained upon at least 5 Business Days’ notice to such Lender and the Agent, will, assign to one or more Eligible Assignees Persons all or a portion of its rights and obligations hereunder under this Agreement (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCommitment, the Swing Loans Advances owing to it and the Letters of CreditNote or Notes held by it); provided, however, that:
that (i) if any each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a constant, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings all rights and Revolving Credit Commitment;
obligations under this Agreement, (ii) except in the aggregate 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 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 (if less than the Assignor’s entire interest) be less than $5,000,000 10,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of thereof unless the Borrower and the Administrative Agent or (II) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
otherwise agree, (iii) if each such assignment shall be to an Eligible Assignee is notAssignee, prior (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 and shall be acceptable to 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 assignmentprincipal amount and all other amounts payable to such Lender under this Agreement, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to and (vi) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance, 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 (other than the Borrower), provided, however, that in the case of each assignment made as a result of a demand by the Borrower with respect to an Increased Cost Lender, such recordation fee shall be payable by the Borrower except that no such recordation fee shall be payable in the case of an assignment made at the request of the Borrower to an Eligible Assignee that is an existing Lender, and (vii) any Lender may, without the approval of the Borrower and the Agent, assign all or a portion of its rights to any of its domestic Affiliates. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such each Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive other than its rights under Sections 2.10, 2.13 and 8.04 to the payment in full of the Obligationsextent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under the Loan Documents, this Agreement other than those relating its obligations under Section 7.05 (to events or circumstances occurring the extent any claim thereunder relates to an event arising prior to such assignment assignment) and Section 8.08 (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documentsthis 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: (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 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 Administrative Agent shall maintain at its address referred to in Section 11.8 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan.
(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, Swing Loanwithout limitation, Letter all or a portion of Credit Obligationits Commitment, Reimbursement Obligationthe Advances owing to it and any Note or Notes held by it); provided, nor 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 Assignment and Acceptance or Assumption such Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders shall be effective unless continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement (and the Borrower shall have no greater obligations under Section 2.10 or Section 2.13 than it is entered would have had if no such sale of a participation had occurred) 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 Register 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 due courseeach 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, designee 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 in accordance with Section 8.08 of this Agreement.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
Appears in 1 contract
Sources: Credit Agreement (Autodesk Inc)
Assignments and Participations. (a) Each Lender may 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 Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that:
that (i) if any such assignment shall be of the assigning Lender’s 's Revolving Credit Outstandings and Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s 's Revolving Credit Outstandings and Revolving Credit Commitment;
, (ii) the aggregate amount 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 (if less than the Assignor’s 's entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except except, in either case, (IA) with the consent of the Borrower Company and the Administrative Agent or (IIB) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender; and
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 the prior consent of the Administrative Agent, each Issuer Agent and the Borrower Company (which consents 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 Company shall not be required for any assignment occurring that occurs when any Event of Default shall have occurred and be continuing.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and Acceptance, together with any Note (if the assigning Lender's Loans are evidenced by a Note) subject to such AMENDED AND RESTATED CREDIT AGREEMENT SUNTRON CORPORATION assignment. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a LenderLender and, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, thereunder and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which that survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 (Notices, Etc.) 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility "Register” or "). Any assignment pursuant to this Section 11.2 shall not be effective until such assignment is recorded in the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility entries in the Register applicable to any Lender shall be available for inspection by the Borrower and Company, the Facility Agents Administrative Agent or such Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreementexecuted by an assigning Lender and an assignee, shall be effective unless it is entered 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 the Company. Within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by such assignee, execute and deliver to the Administrative Agent, new Notes to the order of such assignee in due coursean amount equal to the Revolving Credit Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Note for exchange in connection with the assignment and has retained Revolving Credit Commitments hereunder, new Notes to the order of the assigning Lender in an amount equal to the Revolving Credit Commitments retained by it hereunder. Such new Notes shall be dated the same date as the surrendered Notes and be in substantially the form of Exhibit B (Form of Revolving Credit Note).
(e) In addition to the other assignment rights provided in this Section 11.2, each Lender may assign, as collateral or otherwise, any of its rights under this Agreement (including rights to payments of principal or interest on the Loans) to (i) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrowers or the Administrative Agent and (ii) any trustee for the benefit of the holders of such Lender's Securities; provided, however, that no such assignment shall release the assigning Lender from any of its obligations hereunder. AMENDED AND RESTATED CREDIT AGREEMENT SUNTRON CORPORATION
(f) 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 Revolving Loans and Letters of Credit). 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 any Loan Party 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 Loan Parties), except if any such amendment, waiver or other modification or consent would (i) 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 (ii) result in the release of all or substantially all of the Collateral other than in accordance with Section 10.8(b) (Concerning the Collateral and the Collateral Documents). In the event of the sale of any participation by any Lender, (A) such Lender's obligations under the Loan Documents shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties for the performance of such obligations, (C) such Lender shall remain the holder of such Obligations for all purposes of this Agreement and (D) 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. Each participant shall be entitled to the benefits of Section 2.14(d) (Illegality), Section 2.15 (Capital Adequacy) and Section 2.16 (Taxes) as if it were a Lender; provided, however, that anything herein to the contrary notwithstanding, no Borrower shall, at any time, be obligated to make under Section 2.14(d) (Illegality), Section 2.15 (Capital Adequacy) or Section 2.16 (Taxes) to the participants in the rights and obligations of any Lender (together with such Lender) any payment in excess of the amount such Borrower would have been obligated to pay to such Lender in respect of such interest had such participation not been sold.
(g) Any Issuer may at any time assign its rights and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the Company, the Administrative Agent, such Issuer and such Lender. If any Issuer ceases to be a Lender hereunder by virtue of any assignment made pursuant to this Section 11.2, then, as of the effective date of such cessation, such Issuer's obligations to issue Letters of Credit pursuant to Section 2.4 (Letters of Credit) shall terminate and such Issuer shall be an Issuer hereunder only with respect to outstanding Letters of Credit issued prior to such date.
Appears in 1 contract
Sources: Credit Agreement (Suntron Corp)
Assignments and Participations. (a) Each Lender may sellmay, transferand so long as no Default shall have occurred and be continuing, negotiate if demanded by the Borrower pursuant to Section 2.10(e) or 9.01(b) upon at least five Business Days' notice to such Lender and the Administrative Agent will, assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its rights and obligations with respect to the Revolving LoansCommitment or Commitments, the Advances (including, for the purposes of this Section 9.07(a), participations in Letters of Credit and in Swing Loans Line Advances) owing to it and the Letters of CreditNote or Notes held by it); provided, however, that:
that (i) if any each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under and in respect of any or all Facilities (determined as of the assigning Lender’s Revolving Credit Outstandings date the Assignment and Revolving Credit Commitment, Assumption with respect to such assignment shall cover is delivered to the same percentage Administrative Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
the Trade Date), (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, the aggregate amount of the Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than $5,000,000 1,000,000 (or such lesser amount as shall be approved by the Administrative Agent) under each Facility for which a Commitment is being assigned, (iii) each partial assignment shall be made as an integral multiple assignment of $1,000,000 in excess thereofa proportionate part of all of the assigning Lender's rights and obligations under this Agreement with respect to the Advances or the Commitment assigned, except that this clause (Iiii) with the consent shall not (x) apply to rights in respect of Swing Line Advances or (y) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis, (iv) each such assignment shall be to an Eligible Assignee, (v) each such assignment made as a result of a demand by the Borrower and pursuant to Section 2.10(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 (II) if an assignment of a portion of such rights and obligations made concurrently with another such assignment is being made 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 2.10(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 Affiliate or Approved Fund aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender; and
(iii) if such Eligible Assignee is not, prior together with accrued interest thereon to the date of payment of such assignmentprincipal amount and all other amounts payable to such Lender under this Agreement, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to (vii) the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance. , 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 2.10(e) or
9.01 (b), shall be payable by the Borrower and/or the relevant Eligible Assignee); provided that only one such fee shall be payable in connection with simultaneous assignments by or to two or more related Approved Funds.
(b) Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become be a party hereto and, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuerthe Swing Line Bank or the Issuing Bank, of such Issuer as the case may be, hereunder and thereunder, and (ii) the Lender Party assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive other than its rights under Sections 2.10, 2.12 and 9.04 to the payment in full of the Obligationsextent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s Lender Party's rights and obligations under the Loan Documentsthis Agreement, such Lender Party 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: (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 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 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 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 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, Swing Line Bank or the Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to in Section 11.8 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording recordation of the names and addresses of the Lenders Lender Parties and the IssuersCommitment under each Facility of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing under each Facility to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer Party from time to time (the “Revolving Credit Facility Register” or the “Register”"REGISTER"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, the Lenders Agents and the Issuers shall Lender Parties may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, Party hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents 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 (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. No Revolving LoanIn the case of any assignment by a Lender, Swing Loanwithin 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 each 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 such Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment in respect of such Facility 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 all of its rights and obligations under the undrawn portion of its Letter of Credit ObligationCommitment at any time; provided, Reimbursement Obligationhowever, nor any 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 Acceptance, together with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or Assumption 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 (including such Lender's participations in Letter of Credit Advances and/or Swing Line 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 Loan Parties, 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 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 effective entitled to the benefits of Sections 2.10, 2.11, 2.12, 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 9.05 as though it were a Lender, provided such participant agrees to be subject to Section 2.13 as though it were a Lender. A participant shall not be entitled to receive any greater payment under Sections 2.10 and 2.12 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.
(h) Any Lender Party 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 Party 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 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 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.
(j) Notwithstanding anything to the contrary contained herein, any Lender that is entered a Fund may create a security interest in all or any portion of the Register 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 due coursecompliance 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.
(k) 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 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 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 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 Party 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, ar
Appears in 1 contract
Assignments and Participations. (a) Each Lender may 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:
that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving CREDIT AGREEMENT KNOLOGY, INC. Credit Commitment;
, (ii) the aggregate amount 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 (if less than the Assignorassigning Lender’s entire interest) be less than $5,000,000 1,000,000 or an integral multiple of $1,000,000 100,000 in excess thereofthereof (treating multiple, except simultaneous assignments by or to two or more Approved Funds which are Affiliates or share the same (Ior 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 (IIB) 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 the prior consent of the Administrative AgentAgent and, each in the case of an assignment with respect to the Revolving Credit Facility, of the Issuer and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, furtherhowever, thatthat if such assignment causes any Person (other than CSFB or an Affiliate of CSFB), notwithstanding together with any other provision Affiliates of this Section 11.2such Person, to hold in excess of 50% of the principal amount of the Obligations, or such assignment is to a Person holding in excess of 50% of the principal amount of the Obligations, such assignment shall be subject to the prior consent of the Borrower (which consent shall not be required for unreasonably withheld, delayed or conditioned). Any such assignment need not be ratable as among the Term Loan Facility and the Revolving Credit Facility and if any such assignment occurring when any Event shall be by a Revolving Credit Lender, Issuer or Swing Loan Lender, such assignment shall require the prior consent of Default shall have occurred and be continuingthe Administrative Agent.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)Register, an Assignment and Acceptance. Upon , together with any Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such execution, delivery, acceptance assignment (such new Note or Notes shall be dated the Closing Date and recording shall otherwise be in the Register form of the Note or Notes replaced thereby) and the receipt any administrative questionnaire, tax forms or other documents required by the Administrative Agent from the assignee Agent. Upon its receipt of an assignment 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 fee in the amount of $3,500 for each assignment (other than except that no such registration and processing fee shall be payable in the case of (i) an assignment by Assignment and Acceptance which is electronically executed and delivered to the Administrative Agent via an electronic settlement system (which system shall initially be ClearPar LLC) or (ii) an Eligible Assignee which is already a Lender to or is an Affiliate of such Lender or by in respect of any Agent or their respective Affiliatesassignment made pursuant to Section 2.17 (Substitution of Lenders) from and after Section 11.1(c) (Amendments, Waivers, Etc.)). Commencing on the effective date specified in such Assignment and Acceptance, (i) the assignee Eligible Assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor 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 thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those which survive surviving the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto). CREDIT AGREEMENT KNOLOGY, INC.
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreement, shall be effective unless it is entered in the Register in due course.
Appears in 1 contract
Sources: Credit Agreement (Knology Inc)
Assignments and Participations. (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees banks or other entities all or a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its rights and obligations with respect to the Revolving LoansCommitment, the Swing Loans Advances owing to it and the Letters of CreditNote or Notes held by it); provided, however, that:
that each such assignment shall be to an Eligible Assignee 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 Acceptance, 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 Cdn.$3,500, and shall send to the Borrower an executed counterpart of such Assignment and Acceptance, and provided further, however, that (i) if any except in the case of an assignment to a Lender Affiliate, each such assignment shall be of the assigning Lender’s Revolving Credit Outstandings a constant, and Revolving Credit Commitmentnot a varying, such assignment shall cover the same percentage of all such Lender’s Revolving Credit Outstandings 's rights and Revolving Credit Commitment;
obligations under this Agreement, (ii) the aggregate amount of the Commitment of the assigning Lender being assigned to the assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event must be equal to or greater than Cdn.$10,000,000, or if less, the entire amount of such assigning Lender's "Commitment" (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) with the consent of unless the Borrower and the Administrative Agent or (IIshall otherwise consent, which consent may be withheld for any reason) if such assignment is being made to a Lender or and must be an Affiliate or Approved Fund integral multiple of such Lender; and
Cdn.$1,000,000, 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 the prior consent of the Administrative Agent, each Issuer and the Borrower (which consents 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.
(b) The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below), an Assignment and Acceptance. Upon such execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than except in the case of an assignment by a Schedule II Lender to an a Lender Affiliate thereof that is a Schedule III Bank, 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 or Affiliate shall fail to do so. Upon the execution, delivery, acceptance and recording of each Assignment and Acceptance by any Agent or their respective Affiliates) the parties thereto, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall become be a party hereto and, subject to clause (iii) above, to the extent that rights and obligations under the Loan Documents hereunder have been assigned to such assignee it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder(y) except in the circumstances contemplated in clause (iii) above, and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations under this Agreement hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under the Loan Documentsthis Agreement, such Lender shall cease to be a party hereto, provided, however, such assigning Lender shall retain any claim with respect to any fee, interest, cost, expense or indemnity which accrues, or relates to an event that occurs, prior to the date of such assignment pursuant to Section 2.03, 2.06, 2.12, 2.13, 2.16 or 9.04)
(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 66 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 Parent or the performance or observance by the Borrower or Parent 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 (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 11.8 9.02 a copy of each Assignment and Acceptance Acceptance, each New Lender Agreement and each Commitment Increase Agreement delivered to and accepted by it and a register (which register may be in electronic form) for the recording recordation of the names and addresses of the Lenders and the IssuersCommitment of, the Revolving Credit Commitments of and principal amount of the Revolving LoansAdvances owing to, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”"REGISTER"). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan PartiesBorrower, the Administrative Agent, Agent and the Lenders and the Issuers shall may treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, hereunder for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter .
(d) Upon its receipt of Credit Obligation, Reimbursement Obligation, nor any an Assignment and Acceptance or Assumption Agreement, shall be effective unless executed by an assigning Lender and an assignee representing that it is entered 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 due courseexchange 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 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 67 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 or Parent of their respective 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.
(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 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 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 9.08.
(g) Anything in this Agreement to the contrary notwithstanding, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Advances owing to it) and the Notes, if any, issued to it hereunder in favor of any United States Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System of the United States (or any successor regulation) and the applicable operating circular of such Federal Reserve Bank.
Appears in 1 contract
Sources: Canadian Credit Agreement (Burlington Resources Inc)
Assignments and Participations. (a) Each Lender may 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, the Competitive Bid Loans and the Letters of Credit); provided, however, that:
that (ii)(A) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit CommitmentCommitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment and (B) if any such assignment shall be of the assigning Lender’s Term Loans and Term Loan Commitment;
, such assignment shall cover the same percentage of such Lender’s Term Loans and Term Loan Commitment, (ii) the aggregate amount 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 (if less than the Assignor’s entire interest) be less than (x) in the case of any Revolving Credit Commitments (or in the event that the Revolving Credit Commitments are terminated, the Revolving Loans), $5,000,000 10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the case of any Term Loan, $5,000,000 or an integral multiple of $500,000 in excess thereof, except except, in either case, (IA) with the consent of the U.S. Borrower and the Administrative Agent (in each case such consent not to be unreasonably withheld); or (IIB) 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 the prior consent of the Administrative Agent, each Issuer Agent and the U.S. Borrower (which consents consent shall not be unreasonably withheld or delayed) and (iv) in the case of any assignment of any Revolving Loans or Revolving Credit Commitments, such assignment shall be subject to the prior consent of the Swing Loan Lender (which consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.212.2, the consent of the U.S. 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.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined in clause (c) below)recording, an Assignment and Acceptance, together with any Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. Upon such the execution, delivery, acceptance and recording in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (other than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 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 Issuers, the Revolving Credit Commitments of and principal amount of the Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the “Revolving Credit Facility Register” or the “Register”). The entries in the Revolving Credit Facility Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Revolving Credit Facility Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Revolving Credit Facility Register shall be available for inspection by the Borrower and the Facility Agents at any reasonable time and from time to time upon reasonable prior notice. No Revolving Loan, Swing Loan, Letter of Credit Obligation, Reimbursement Obligation, nor any Assignment and Acceptance or Assumption Agreementand, shall be effective unless it is entered other than in the Register in due course.respect of assignments made pursuant to Section 2.18 (Substitution of Lenders) and Section 12.1
Appears in 1 contract
Sources: Credit Agreement (FMC Corp)