Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 11 contracts

Sources: Credit Agreement (American States Water Co), Credit Agreement (American States Water Co), Credit Agreement (American States Water Co)

Binding Effect; Assignment. ~~(a)~~ This Agreement shall become effective when it shall have been executed by each of the parties hereto and ~~the other Loan Documents to which Borrower is a Party will~~ thereafter shall be binding ~~upon and inure~~ upon, enure to the benefit of ~~Borrower, the Administrative Agent, each of the Lenders,~~ and be enforceable by such parties and their respective permitted successors and assigns~~, except that Borrower may not~~ . No Credit Party shall have the right to assign its rights and obligations hereunder or ~~thereunder~~ under the other Facility Documents or any interest herein or therein without the prior written consent of ~~all~~ the Agent (acting on the instruction of the Lenders). Each Lender ~~represents that it is not acquiring its Note~~ reserves the right to, with ~~a view~~ prior notice to the ~~distribution thereof within the meaning of the Securities Act of 1933~~Borrower, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Banksell, ~~but no such pledge shall release that Lender from its obligations hereunder~~ assign, transfer or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees participations in all or any portion of its rights and obligations hereunder and under ~~this Agreement (including all or a portion of its Commitment,~~ the ~~Advances owing~~ other Facility Documents to ~~it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or~~ any other Person who is an Affiliate of the ~~assigning~~ Lender. To the extent that any Lender wishes to sell, ~~shall be approved by~~ assign, transfer or grant participation in all or any portion of its rights and obligations hereunder or under the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished Facility Document to ~~the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to~~ any other Person who is not an Affiliate of ~~the assigning~~ a Lender, ~~to another Lender or~~ then prior written consent of the ~~entire remaining~~ Borrower shall be required (provided that no such consent shall be required following the occurrence of an Event of Default which is continuing). In the event of any grant of a participation, the granting Lender’s obligations under this Agreement to the Borrower shall remain unchanged, such Lender shall remain solely responsible for the performance thereof and the Credit Parties shall continue to be obligated to the granting Lender in connection with such ▇▇▇▇▇▇’s rights under this Agreement and the other Facility Documents (including in respect of the interest in which such Lender has granted a participation). In the event of any such assignment, upon written notice thereof to the Borrower, the assignee shall be deemed to be a “Lender” for all purposes of the Facility Documents with respect to the rights and obligations assigned to it, and the rights and obligations of the assigning Lender ~~under this Agreement, the assignment~~ so assigned shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderthereupon terminate. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 6 contracts

Sources: Credit Agreement (Anfield Energy Inc.), Fourth Amendment to Credit Agreement and Omnibus Amendment to Certain Guarantees (Anfield Energy Inc.), Fourth Amendment to Credit Agreement and Omnibus Amendment to Certain Guarantees (Anfield Energy Inc.)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of the Borrower, the Guarantor, the Administrative ~~Agent,~~ Agent and each ~~of the Lenders~~Lender, and their respective successors and permitted assigns, except that the Borrower ~~may~~ and the Guarantor shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of ~~all~~ the Administrative Agent and the Lenders, and any assignment by the Borrower or Guarantor in violation of this Section 10.8 shall be null and void. ~~Each Lender represents that it is not acquiring its Note with a view~~ Notwithstanding anything to the ~~distribution thereof within~~ contrary in the ~~meaning~~ first sentence of ~~the Securities Act of 1933~~this Section 10.8, ~~as amended (subject to~~ any ~~requirement that disposition of such Note must be within the control of such Lender). Any~~ Lender may at any ~~time pledge its Note~~ time, without the consent of the Administrative Agent, assign all or any ~~other instrument evidencing~~ portion of its rights ~~as a Lender~~ under this Agreement and any Loan Note to a Federal Reserve Bank~~, but~~ ; provided that no such assignment or pledge shall release ~~that~~ the transferor Lender from its obligations ~~hereunder or grant~~ hereunder. Subject to ~~such Federal Reserve Bank~~ the ~~rights~~ terms of ~~a Lender hereunder absent foreclosure of such pledge. (b) From time to time following~~ the ~~Closing Date~~Acknowledgment Agreements, each Lender may assign to one or more ~~Eligible Assignees~~ banks or other entities all or any part or portion of, or may grant participations to one or more banks or other entities in all or any part or portion of its rights and obligations ~~under this Agreement~~ hereunder (including ~~all or a portion of~~ its Commitment, ~~the Advances owing to it and the Note~~ its Loan Notes or ~~Notes held by it~~its Advances); provided ~~that, subject~~ that (A) each party to ~~subsection (f) below~~such assignment shall execute and deliver an Assignment and Assumption to the Administrative Agent, (iB) shall be to (x) a bank, other financial institution or lender which is reasonably acceptable to the Administrative Agent, or (y) a “qualified institutional buyer”, as defined in Rule 144A under the Securities Act of 1933, as amended, reasonably acceptable to the Administrative Agent, and (C) unless an Event of Default has occurred and is continuing, the Borrower shall have the right to consent to any assignment of the Lender’s rights and obligations under this Agreement, such ~~Eligible Assignee~~consent not to be unreasonably withheld, ~~if not then a~~ conditioned or delayed; provided that no such consent of the Administrative Agent or the Borrower shall be required for an assignment to any Lender or an Affiliate of a Lender. Upon, and to the ~~assigning Lender~~extent of, ~~shall be approved~~ any assignment (unless otherwise stated therein) made by any Lender hereunder, the ~~Administrative Agent and Borrower (neither~~ assignee or purchaser of ~~which approvals shall be unreasonably withheld or delayed), (ii)~~ such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender hereunder for all purposes of this ~~Agreement~~Agreement and shall have all the rights, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights benefits and obligations ~~hereunder being assigned thereby free and clear of any adverse claim,~~ (including the ~~assigning Lender has made no representation or warranty and assumes no responsibility with respect~~ obligation to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered provide documentation pursuant to Section ~~7.1 and such other documents and information~~ 2.15(g)) of a Lender hereunder. The Administrative Agent, acting solely for this purpose as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all an agent of the ~~obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent~~ Borrower, shall maintain at ~~the Administrative Agent’s Office a copy~~ one of ~~each Assignment and Acceptance delivered to it and~~ its offices a register (the “Register”) for the recordation of the names and ~~address of each~~ addresses of the ~~Lenders~~ Lenders, the Commitment and ~~the Pro Rata Share~~ outstanding principal amounts (and accrued interest) of the ~~Commitments held by each Lender, giving effect~~ Advances owing to each ~~Assignment~~ Lender pursuant to the terms hereof from time to time and ~~Acceptance~~any assignment of such Commitment or outstanding Advances. The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive absent manifest error, and ~~receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee,~~ the ~~Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto.~~ Borrower, the Administrative Agent and the Lenders shall ~~deem and~~ treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each ~~case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and~~ Person whose name is recorded in the Register ~~as provided above. Prior to such recordation, all amounts owed with respect~~ pursuant to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be ~~conclusive~~ available for inspection by the Borrower and ~~binding on~~ any ~~subsequent holder~~Lender, ~~assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may~~ at any reasonable time and from time to time ~~grant participations~~ upon reasonable prior notice. Any Lender may sell participation interests in its Advances and obligations hereunder (each such recipient of a participation a “Participant”); provided that after giving effect to ~~one or more banks or other financial institutions in or to all or a portion~~ the sale of ~~its rights and/or obligations under this Agreement; provided~~such participation, ~~however, that (i)~~ such Lender’s obligations ~~under this Agreement~~ hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, ~~(ii)~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ~~(iii) the participating banks or other financial institutions shall not be a~~ all amounts payable to such Lender hereunder ~~for~~ and all rights to consent to any ~~purpose except,~~ waiver hereunder or amendment hereof shall be determined as if ~~the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of~~ such ~~benefits to Borrower does~~ Lender had not ~~exceed the cost which Borrower would have incurred in respect of the Lender granting~~ sold such participation ~~absent~~ interest, and the ~~participation, (iv) Borrower,~~ Borrower and the Administrative Agent ~~and the other Lenders~~ shall continue to deal solely and directly with such Lender and not be obligated to deal with such 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 outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction 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 Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Proposed Treasury Regulations Section 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. For the avoidance of doubt, the Administrative Agent shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.15(g) (it being understood that the documentation required under Section 2.15(g) shall be delivered to the participating Lender)), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.15 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. Notwithstanding any other provision of this Agreement to the contrary, a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to (i) a security trustee in connection with the funding by such ~~Lender’s rights and~~ Lender of Advances or (ii) a Federal Reserve Bank to secure obligations to such Federal Reserve Bank, in each case without the consent of the Borrower; provided that no such pledge or grant shall release such Lender from its obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 4 contracts

Sources: Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s 's Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s 's Notes) to such assignee Lender, Notes evidencing that assignee Lender’s 's Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Assignment and Acceptance delivered to it and a register (the “"Register”") of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s 's rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s 's rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 4 contracts

Sources: Credit Agreement (American States Water Co), Credit Agreement (American States Water Co), Credit Agreement (American States Water Co)

Binding Effect; Assignment. (aA) This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of the Borrower, the ~~Administrative Agent,~~ Custodian and the Agent and each ~~of the Lenders~~Lender, and their respective successors and assigns, except that the Borrower ~~may~~ shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of ~~all~~ the Agent and the Lenders, and any assignment by the Borrower in violation of this Section 9.8 shall be null and void. ~~Each Lender represents that it is not acquiring its Note with a view~~ Notwithstanding anything to the ~~distribution thereof within~~ contrary in the ~~meaning~~ first sentence of ~~the Securities Act of 1933~~this Section 9.8, ~~as amended (subject to~~ any ~~requirement that disposition of such Note must be within the control of such Lender). Any~~ Lender may at any ~~time pledge its Note~~ time, without the consent of the Borrower or the Agent, assign all or any ~~other instrument evidencing~~ portion of its rights ~~as a Lender~~ under this Agreement and any Loan Note to a Federal Reserve Bank; provided, ~~but~~ that no such assignment or pledge shall release ~~that~~ the transferor Lender from its obligations ~~hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge~~hereunder. (bB) ~~From time to time following the Closing Date, each~~ Each Lender may assign to one or more ~~Eligible Assignees~~ banks or other entities all or any part or portion of its rights and obligations hereunder (including, without limitation, its Commitment, its Loan Notes or its Advances); provided, that each such assignment (i) shall be in form and substance acceptable to the Agent, (ii) shall, without limiting the rights of the Borrower under subclause (iii) below and unless either (x) such assignee is a Permitted Assignee or (y) an Event of Default or Amortization Event shall have occurred and is continuing, be approved by the prior written consent of the Borrower (such consent not to unreasonably withheld or delayed), (iii) shall not be made to a Person that is a Disqualified Lender as of the date on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights and obligations under this Agreement to such Person (~~including all or~~ unless the Borrower has consented to such assignment in writing in its sole and absolute discretion, which, in either such case, such Person shall not be considered a ~~portion~~ Disqualified Lender for the purpose of ~~its Commitment, the Advances owing to it and the Note or Notes held by it~~this Agreement)~~; provided that, subject to subsection (f) below~~, (iiv) shall either be made to a Permitted Assignee or to a Person which is acceptable to the Agent (such ~~Eligible Assignee, if~~ consent not ~~then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall~~ to be unreasonably withheld or delayed), ) and (iiv) the parties to each such assignment shall ~~be evidenced by~~ execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment Agreement, together with any Loan Note or Loan Notes subject to such assignment and ~~Acceptance~~a processing and recordation fee of $3,000. Upon execution, ~~a copy~~ delivery, acceptance and recording of ~~which~~ an Assignment Agreement, from and after the effective date specified in such Assignment Agreement, (A) the assignee thereunder shall be ~~furnished~~ a party hereto and, to the ~~Administrative Agent as hereinbelow provided~~extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement, have the rights and obligations of a Lender hereunder (~~iii~~including the obligation to provide documentation pursuant to Section 2.15(G)) ~~except~~ of a Lender hereunder) and (B) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment Agreement, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an ~~assignment to~~ Assignment Agreement covering all or the remaining portion of an ~~Affiliate of the~~ assigning Lender~~, to another Lender or of the entire remaining~~ ’s rights and obligations ~~of the assigning Lender~~ under this Agreement, such Lender shall cease to be a party hereto). (C) If any assignment is made to a Disqualified Lender in violation of this Section 9.8, the ~~assignment shall~~ Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Lender and the Agent, (i) purchase or prepay the Advances held by such Disqualified Lender by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified ▇▇▇▇▇▇ paid to acquire such Advances, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (ii) require such Disqualified Lender to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 9.8), all of its interest, rights and obligations under this Agreement to one or more banks or other entities at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder. (D) Disqualified Lenders (i) will not, absent consent from the Borrower (x) have the right to receive financial reports that are not ~~assign a portion~~ publicly available, Monthly Servicer Reports or other reports or confidential information provided to Lenders by the Borrower or the Agent (other than Tax reporting information with respect to the Advances), (y) attend or participate in meetings with the Borrower attended by the Lenders and the Agent, or (z) access any electronic site maintained by the Borrower or Agent to provide Lenders with confidential information or confidential communications from counsel to or financial advisors of ~~such assigning Lender’s Commitments and/or Advances owing~~ the Agent and (ii) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Transaction Document, each Disqualified Lender will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Lenders consented to such ~~assigning Lender that is equivalent to less than $3,000,000~~matter, and (ivy) for purposes of voting on any plan of reorganization or plan of liquidation, each Disqualified Lender party hereto hereby agrees (1) not to vote on such plan, (2) if such Disqualified ▇▇▇▇▇▇ does vote on such plan notwithstanding the ~~effective date of any~~ restriction in the foregoing clause (1), such ~~assignment~~ vote will be deemed not to be in good faith and shall be ~~as specified~~ “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other debtor relief laws), and such vote shall not be counted in determining whether the ~~Assignment~~ applicable class has accepted or rejected such plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other debtor relief laws) and ~~Acceptance, but~~ (3) not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be to contest any request by any party for a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery determination by the ~~assigning Lender to Borrower~~ Bankruptcy Court (or other applicable court of ~~such Lender’s Notes~~competent jurisdiction) ~~to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to~~ effectuating the ~~assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender~~foregoing clause (2). (cE) By executing and delivering an Assignment ~~and Acceptance~~Agreement, the ~~Eligible Assignee~~ Lender assignor thereunder ~~acknowledges~~ and ~~agrees that~~the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than ~~the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim~~as provided in such Assignment Agreement, ~~the~~ such assigning Lender ~~has made~~ 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 Transaction Document or the execution, legality, validity, enforceability, ~~genuineness~~ genuineness, sufficiency or ~~sufficiency~~ value of this Agreement or any other ~~Loan Document~~Transaction Document or any other instrument or document furnished pursuant hereto or thereto; (ii) ~~the~~ such assigning Lender ~~has made~~ 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 ~~the Obligations~~any of its Obligations under this Agreement or any other Transaction Document or instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the ~~most recent~~ financial statements ~~delivered pursuant to Section 7.1~~ of the Borrower, 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~~Agreement; (iv) it such assignee will, independently and without reliance upon the ~~Administrative Agent~~ 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) it 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 Transaction Documents as are delegated to the ~~Administrative~~ Agent by ~~this Agreement~~the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (dF) The ~~Administrative~~ Agent shall maintain at one of its offices in the ~~Administrative Agent’s Office~~ United States (as defined in Section 7701(a)(9) of the Code) a copy of each Assignment ~~and Acceptance~~ Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitments of, and outstanding principal amount (and accrued interest) of the Advances owing to, each Lender from time to time (the “Register”~~) of~~ ). The entries in the ~~names~~ Register shall be conclusive and ~~address of each of~~ binding for all purposes, absent manifest error, and the Borrower, the Agent and the Lenders ~~and~~ shall treat each Person whose name is recorded in the ~~Pro Rata Share~~ Register as a Lender hereunder for all purposes of ~~the Commitments held by each Lender, giving effect to each Assignment and Acceptance~~this Agreement. The Register shall be available ~~during normal business hours~~ for inspection by the Borrower or and each Lender at any ~~Lender~~ reasonable time and from time to time upon reasonable prior notice to the ~~Administrative~~ Agent~~. After~~ . (G) Upon its receipt of ~~a completed~~ an Assignment ~~and Acceptance~~ Agreement executed by ~~any~~ an assigning Lender and an ~~Eligible Assignee~~assignee, ~~and receipt of an assignment fee of $3,500 from~~ together with any Loan Note subject to such ~~Lender or Eligible Assignee~~assignment, the ~~Administrative~~ Agent shall, ~~promptly following~~ if such Assignment Agreement has been completed and is in substantially the form of Exhibit E-2 hereto, (i) accept such Assignment Agreement, (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 no cost to the Agent or the Lenders, shall execute and deliver to the Agent, in exchange for the surrendered Loan Note, a new Loan Note to the order of such assignee Lender in an amount equal to the Commitment assumed by it pursuant to such Assignment Agreement and, if the assigning Lender has retained a Commitment hereunder, a new Loan Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Loan Note or Loan Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Loan Note or Loan Notes, shall be dated the effective date ~~thereof~~of such Assignment Agreement and shall otherwise be in substantially the form of Exhibit C. (H) Any Lender may, ~~provide to Borrower and~~ without the ~~Lenders a revised Schedule 1.1 giving effect thereto.~~ consent of the Borrower, ~~the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders~~ sell participation interests in ~~the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights~~ its Advances and obligations hereunder ~~shall be effective, in~~ to a Person that is not a Disqualified Lender (each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such ~~recordation, all amounts owed with respect to the applicable Pro Rata Share~~ recipient of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or participation a ~~portion of its rights and/or obligations under this Agreement~~“Participant”); provided, ~~however~~that after giving effect to the sale of such participation, ~~that (i)~~ such ~~Lender~~▇▇▇▇▇▇’s obligations ~~under this Agreement~~ hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, ~~(ii)~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ~~(iii) the participating banks or other financial institutions shall not be a~~ all amounts payable to such Lender hereunder ~~for~~ and all rights to consent to any ~~purpose except,~~ waiver hereunder or amendment hereof shall be determined as if ~~the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of~~ such ~~benefits to Borrower does~~ Lender had not ~~exceed the cost which Borrower would have incurred in respect of the Lender granting~~ sold such participation ~~absent~~ interest, and the ~~participation, (iv)~~ Borrower, the ~~Administrative~~ Agent and the other ~~Lenders~~ parties hereto shall continue to deal solely and directly with such Lender and not be obligated to deal with such participant. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register in which it enters the name and address of each Participant and the outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction 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 Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. 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 shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligations under Section 2.15(G) and Section 2.18), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.15 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. Notwithstanding any other provision of this Agreement to the contrary, (i) a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to a security trustee in connection with the funding by such ~~Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage~~ Lender of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) Advances without the consent of the ~~holder of~~ Borrower; provided that no such ~~participation interest~~ pledge or grant shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release ~~any Guarantor~~ such Lender from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights obligations under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) ~~pledges described in~~ a Conduit Lender may at any time, without any requirement to obtain the ~~last sentence of subsection (a) above, no assignment shall be made without the approval~~ consent of the ~~Administrative Agent~~Agent or the Borrower, pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of capital and yield) under this Agreement to a collateral agent or trustee for its commercial paper program.

Appears in 3 contracts

Sources: Credit Agreement (Sunnova Energy International Inc.), Credit Agreement (Sunnova Energy International Inc.), Credit Agreement (Sunnova Energy International Inc.)

Binding Effect; Assignment. ~~(a)~~ This ~~Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and~~ Warrant shall inure to the benefit of ~~Borrower,~~ and be binding upon the ~~Administrative Agent, each of~~ Company and the ~~Lenders,~~ Holder and their respective ~~successors~~ successors, heirs, legal representatives and permitted assigns. This Warrant and the Warrant Shares (collectively, ~~except that Borrower~~ "Securities") may only be disposed of pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from or in a transaction not ~~assign its rights hereunder or thereunder or~~ subject to the registration requirements of the Securities Act, and in compliance with any ~~interest herein or therein without~~ applicable federal and state securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement, transfer may only be made with the prior written consent of ~~all~~ the ~~Lenders. Each Lender represents that it is~~ Company, which shall not ~~acquiring its Note with a view~~ be unreasonably withheld, and the Company may require the transferor to provide to the ~~distribution thereof within~~ Company an opinion of counsel selected by the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitmenttransferor, the ~~Advances owing to it~~ form and ~~the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate~~ substance of ~~the assigning Lender,~~ which opinion shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished reasonably satisfactory to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth andCompany, to the ~~extent~~ effect that such transfer does not require registration of such ~~Commitments and/or Advances,~~ transferred securities under the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this AgreementSecurities Act; provided, however, that ~~(i)~~ notwithstanding the foregoing, no consent of the Company shall be required for the assignment or transfer of rights hereunder by a Holder to such ~~Lender’s obligations under this Agreement shall remain unchanged~~assignor's or transferor's partners, ~~(ii) such Lender shall remain solely responsible~~ shareholders or members or retired partners or former shareholders or members, if any, or for any other assignment or transfer to the ~~other parties hereto for the performance~~ spouse, ancestors, lineal descendants or siblings of such ~~obligations~~assignor or transferor, provided the transferee(s) certify to the Company that each is an "accredited investor" within the meaning of Rule 501(a) under the Securities Act and that it is acquiring the Securities solely for investment purposes. The Company shall register the transfer of any portion of this Warrant, upon surrender of this Warrant with the Form of Assignment attached hereto duly completed and signed, to the Company's transfer agent or to the Company at the office specified in Section 8.2. Upon any such transfer, a new warrant to purchase Common Stock, in substantially the form of this Warrant (~~iii)~~ any such new warrant, a "New Warrant"), evidencing the ~~participating banks or other financial institutions~~ portion of this Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining portion of this Warrant not ~~be a Lender hereunder for any purpose except~~so transferred, if ~~the participation agreement so provides~~any, ~~for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only~~ shall be issued to the ~~extent that~~ transferring Holder. The acceptance of a New Warrant by the ~~cost~~ transferee shall be deemed the acceptance of such ~~benefits to Borrower does not exceed the cost which Borrower would have incurred in respect~~ transferee of all of the Lender granting such participation absent the participation, (iv) 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~~of a holder of a Warrant. This Warrant is exchangeable, ~~(v)~~ upon the ~~participation interest shall be expressed as a percentage~~ surrender hereof by the Holder to the office of the ~~granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase~~ Company specified in Section 8.2, for one or more New Warrants evidencing in the ~~Revolving Facility (or~~ aggregate the ~~aggregate Commitments pertaining thereto), or in~~ right to purchase the ~~granting Lender’s rights and obligations~~ number of Warrant Shares which may then be purchased hereunder~~, so long as~~ . Any such New Warrant will be dated the ~~amount of the participation interest is not affected thereby and (vi) the consent of the holder~~ date of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyexchange. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 3 contracts

Sources: Warrant Agreement (Aequitas Capital Management Inc.), Warrant Agreement (Aequitas Capital Management Inc.), Warrant Agreement (Microfield Graphics Inc /Or)

Binding Effect; Assignment. ~~(a)~~ 11.10.1 This ~~Agreement~~ Agreement, the Notes and the other Loan Documents ~~to which Borrower is a Party will~~ shall be binding upon and shall inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties hereto and thereto and their respective successors and assigns, except that no Borrower ~~may not~~ nor FSI shall assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of ~~all the Lenders~~each Lender. Each Lender ~~represents~~ shall have the right in accordance with this Section 11.10 (a) to sell and assign to any Eligible Assignee all or any portion of its interest ( provided that ~~it is~~ any such partial assignment shall not ~~acquiring~~ be for a principal amount of less than Five Million Dollars ($5,000,000)) under this Agreement, its ~~Note with a view~~ respective Notes and the other Loan Documents, subject to the ~~distribution thereof within~~ prior written consent of the ~~meaning~~ affected Borrower, which consent shall not be unreasonably withheld, and (b) to grant any participation or other interest herein or therein, except that each potential participant to which a Lender intends to grant any rights under Sections 2.9, 2.10, 5.1 or 10.2 shall be subject to the prior written consent of the affected Borrower, which consent shall not be unreasonably withheld; provided, however, that no such sale, assignment or participation grant shall result in requiring registration under the Securities Act of 1933, as ~~amended (subject to~~ amended, or qualification under any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgestate securities law. ~~(b) From time~~ 11.10.2 Subject to ~~time following~~ the ~~Closing Date~~limitations of this Section 11.10.2, each Lender may ~~assign~~ sell and assign, from time to ~~one or more Eligible Assignees~~ time, all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of the Commitments to any of its ~~Commitment~~Affiliates or, with the ~~Advances owing~~ approval of the affected Borrower and FSI (which approval shall not be unreasonably withheld), to ~~it and the Note or Notes held by it); provided that~~any other financial institution acceptable to Agent, subject to ~~subsection (f) below, (i)~~ the assumption by such ~~Eligible Assignee, if not then a Lender or an Affiliate~~ assignee of the ~~assigning Lender, shall be approved by~~ share of the ~~Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld~~ Commitments so assigned. The assignment to such Affiliate or ~~delayed), (ii) such assignment~~ other financial institution shall be evidenced by an Assignment and Acceptance in the form of Exhibit G (" Assignment and Acceptance ") executed by the assignor Lender (hereinafter from time to time referred to as the " Assignor Lender ") and such Affiliate or other financial institution (which, upon such assignment shall become a Lender hereunder (hereinafter from time to time referred to as the " Assignee Lender ")). The Assignment and Acceptance need not include any of the economic or financial terms upon which such Assignee Lender receives the assignment from the Assignor Lender, and such terms need not be disclosed to or approved by such Borrower or FSI; provided only that such terms do not diminish the obligations undertaken by such Assignee Lender in the Assignment and Acceptance or increase the obligations of Borrowers or FSI under this Agreement. Upon execution of such Assignment and Acceptance, ~~a copy~~ (a) the definition of ~~which~~ "Commitments" in Section 1 hereof and the Pro Rata Shares set forth therein shall be ~~furnished~~ deemed to be amended to reflect each Lender’s share of the Commitments, after giving effect to the ~~Administrative Agent~~ assignment and (b) the Assignee Lender shall, from the effective date of the Assignment and Acceptance, be subject to all of the obligations, and entitled to all of the rights, of a Lender hereunder, except as ~~hereinbelow provided, (iii) except~~ may be expressly provided to the contrary in the ~~case~~ Assignment and Acceptance. To the extent the obligations hereunder of an the Assignor Lender are assumed by the Assignee Lender, the Assignor Lender shall be relieved of such obligations. Upon the assignment of any interest by any Assignor Lender pursuant to this Section 11.10.2, such Assignor Lender agrees to supplement Schedule A to show the date of such assignment, the Assignor Lender, the Assignee Lender, the Assignee Lender’s address for notice purposes and the amount of the Commitments so assigned. In connection and as a condition to each assignment hereunder, the Assignor Lender agrees to pay or to cause the Assignee Lender to pay to Agent a processing fee of $3,500; provided that no processing fee shall be charged for any assignment to ~~an Affiliate of the assigning Lender, to another~~ a Lender or a Lender Affiliate. 11.10.3 Subject to the limitations of this Section 11.10.3, any Lender may also grant, from time to time, participation interests in the ~~entire remaining rights and obligations~~ interests of ~~the assigning~~ such Lender under this Agreement, the ~~assignment~~ Notes and the other Loan Documents to any other financial institution without notice to, or approval of, any Borrower or FSI. The grant of such a participation interest shall be on such terms as the granting Lender determines are appropriate, provided only that (a) the holder of such participation interest shall not ~~assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of~~ have any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights ~~and obligations hereunder being assigned thereby free and clear~~ of ~~any adverse claim, the assigning~~ a Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose exceptexcept , if the participation agreement so expressly provides, ~~for the purposes of~~ rights under Sections ~~3.5~~2.9, ~~3.6~~2.10, ~~11.11~~ 5.1 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation10.2, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vib) the consent of the holder of such a participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than , if the participation agreement expressly provides, those which (Ai) ~~extend~~ increase the monetary amount of any ~~Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders~~Commitment, (Bii) ~~reduce the rate of interest on the Notes,~~ decrease any fee or any other monetary amount payable to ~~the~~ Lenders~~, (C) reduce the amount of any installment of principal due under the Notes~~, or (Diii) ~~release~~ extend the date upon which any ~~Guarantor from its Guaranty~~monetary amount is payable to Lenders. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 3 contracts

Sources: Warehousing Credit Agreement (PLM Equipment Growth Fund Vi), Warehousing Credit Agreement (PLM Equipment Growth & Income Fund Vii), Warehousing Credit Agreement (PLM Equipment Growth Fund V)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon the Seller and ~~inure to~~ the ~~benefit of Borrower, the Administrative Agent, each of the Lenders~~Purchasers, and their respective successors and permitted assigns. Except as expressly provided in this Agreement, ~~except that Borrower may~~ this Agreement shall not ~~assign its~~ be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement, and their respective successors and permitted assigns. Subject to applicable federal and state securities laws the rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning and obligations of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender Purchasers under this Agreement with respect to ~~a Federal Reserve Bank~~the Warrants and the Equity Documents may be sold, ~~but no~~ assigned or pledged by any Purchaser, in whole or in part, in accordance with the provisions of the Warrants, and upon any such ~~pledge~~ assignment, the holders of the Warrants shall ~~release that Lender from its obligations hereunder or grant~~ succeed to ~~such Federal Reserve Bank~~ all of the ~~rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its~~ selling Purchaser's rights and obligations under this Agreement ~~(including all or a portion of its Commitment,~~ with respect to the ~~Advances owing to it~~ Warrants and the ~~Note~~ Equity Documents to the extent assigned and the selling Purchaser shall be automatically released from any obligations thereunder with respect to the Warrants and the Equity Documents to the extent assigned. Subject to applicable federal and state securities laws the Acquired Shares may be sold, assigned or ~~Notes held by it); provided that,~~ pledged subject only to ~~subsection (f) below, (i)~~ the Registration Rights Agreement and upon any such ~~Eligible Assignee, if not then a Lender or an Affiliate~~ assignment the holders of the ~~assigning Lender,~~ Acquired Shares shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished succeed to the ~~Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining~~ Purchaser's rights and obligations under the Registration Rights Agreement. Upon request of any Purchaser in connection with any transfer of the ~~assigning Lender under~~ Warrants or Acquired Shares, the Seller shall execute and deliver any amendment to this Agreement, the ~~assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000~~Warrants, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other ~~Lenders shall continue~~ Equity Documents reasonably requested by the Purchaser to ~~deal solely~~ reflect the transfer and ~~directly with such Lender in connection with such Lender’s~~ delineate the rights ~~and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage~~ of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement transferor and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agenttransferee.

Appears in 3 contracts

Sources: Securities Purchase Agreement (Enron Capital & Trade Resources Corp), Securities Purchase Agreement (Brigham Holdings Ii LLC), Securities Purchase Agreement (Brigham Exploration Co)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding ~~upon~~ on and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity (including any Executive or person engaged by Quixote in any capacity) not a party to this Agreement. Quixote will require any successor (whether direct or indirect, ~~except that Borrower may not assign its rights hereunder~~ by merger, purchase, consolidation or ~~thereunder or any interest herein or therein without the prior written consent~~ otherwise) of ~~all the Lenders. Each Lender represents that it is not acquiring its Note with a view~~ Quixote to ~~the distribution thereof within the meaning~~ make an express assumption of the ~~Securities Act~~ obligations hereunder and cause any successor (whether direct or indirect, by merger, purchase, consolidation or otherwise) to all or substantially all of ~~1933, as amended (subject~~ the business and/or assets of Quixote to ~~any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender~~ agree to perform all parts and provisions under this Agreement in the same manner and to the same extent that Quixote would be required to perform it if no such succession had taken place. Failure of Quixote to obtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle Executive to compensation from Quixote in the same amount and on the same terms as he would be entitled to hereunder if he is subject to a ~~Federal Reserve Bank~~Good Reason, ~~but no~~ and the date on which any such ~~pledge~~ succession becomes effective shall ~~release that Lender from its obligations hereunder~~ be deemed the date of Termination. As used in this Agreement, Company shall mean Quixote as hereinbefore defined and any successor to the business and/or assets of Quixote which executes and delivers the agreement provided for in this Section 12, or ~~grant to such Federal Reserve Bank~~ which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law. This Agreement and all rights of ~~a Lender~~ the Executive hereunder ~~absent foreclosure of~~ shall inure to the benefit of, and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive should die after any amounts shall become payable to him hereunder, all such ~~pledge. (b) From time to time following the Closing Date~~amounts, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); unless otherwise provided ~~that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender~~for herein, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform paid in accordance with ~~their terms all of the obligations which by~~ the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the ~~Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee~~Executive’s devisee, ~~and receipt of an assignment fee of $3,500 from~~ legatee or other designee or, if there be no such ~~Lender~~ devisee or ~~Eligible Assignee~~other designee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityExecutive’s estate. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 3 contracts

Sources: Severance and Non Competition Agreement (Quixote Corp), Severance and Non Competition Agreement (Quixote Corp), Severance and Non Competition Agreement (Quixote Corp)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which ~~Borrower~~ ▇▇▇▇▇▇▇▇ is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, the ~~Administrative~~ Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its ~~Note~~ Advances and other Obligations hereunder with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it~~ respective Commitments and the ~~Note or Notes held by it)~~Loans; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the ~~Administrative~~ Agent and the Issuing Lender and (if no Event of Default pursuant to Section 9.1(a), (b) or (j) then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed); provided that (x) Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Agent within 10 Banking Days after having received notice thereof and (y) approval of the Issuing Lender shall not be required in connection with the assignment of any New Term Loans, (ii) no such assignment shall be made to (A) Borrower or any of Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), (iii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the ~~Administrative~~ Agent as ~~hereinbelow~~ herein below provided, (~~iii~~iv) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitments and/or Loans of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a any portion of ~~such assigning Lender’s Commitments~~ any Commitment and/or ~~Advances owing to such assigning Lender~~ Loans that is equivalent to less than $~~3,000,000~~5,000,000 (or, in the case of any New Term Loans, such other minimum amount as may be set forth in the applicable New Term Facility Supplement; provided that such minimum amount shall not be less than $1,000,000) and (ivv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the ~~Administrative~~ Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments and/or ~~Advances~~ Loans therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that ▇▇▇▇▇▇’s having been a Defaulting Lender. ~~Borrower~~ ▇▇▇▇▇▇▇▇ agrees ~~that~~ that, to the extent requested by any such Lender, it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s~~ its Notes) to such assignee Lender, Notes evidencing that assignee ~~Lender~~▇▇▇▇▇▇’s respective Commitments and/or ~~Advances~~Loans, and to the assigning Lender, Notes evidencing the remaining balance of ~~the~~ its respective Commitments and/or ~~Advances retained~~ Loans. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the ~~assigning~~ assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and the Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent, the Issuing Lender, the Swing Line Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Commitments and/or Loans being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the ~~Administrative~~ 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; (v) it appoints and authorizes the ~~Administrative~~ Agent to take such action and to exercise such powers under this Agreement as are delegated to the ~~Administrative~~ Agent by this Agreement; ~~and~~ (vi) 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 (vii) it is not a Disqualified Institution. (d) The ~~Administrative~~ Agent shall maintain at the ~~Administrative~~ Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments and/or the principal amounts (and stated interest) of the Loans held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the ~~Administrative~~ Agent. After receipt of a completed Assignment and Acceptance executed by any ~~Lender~~ ▇▇▇▇▇▇ and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the ~~Administrative~~ Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the ~~Administrative~~ Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the ~~Pro Rata Shares of the Revolving Facility~~ Commitments and/or Loans listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Commitments and/or Loans shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the ~~Administrative~~ Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the ~~applicable Pro Rata Share of the Revolving Facility~~ Commitments and/or Loans shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding ~~Pro Rata Share of the Revolving Facility~~Commitments and/or Loans. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (other than a Disqualified Institution, a Defaulting Lender or Borrower or any of Borrower’s Affiliates or Subsidiaries) in ~~or to all or~~ a portion of ~~its rights~~ the Commitments and/or ~~obligations under this Agreement~~Loans; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.6, ~~3.6~~3.7, 3.11, 11.11 and ~~11.21~~ 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, (iv) Borrower, the ~~Administrative~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s ~~Pro Rata Share of the Revolving Facility~~ Commitments and/or Loans as it then exists and shall not restrict an increase in the ~~Revolving Facility (or the aggregate~~ Commitments ~~pertaining thereto)~~and/or Loans, or in the granting Lender’s ~~rights and obligations hereunder~~Commitments and/or Loans, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, (vi) the holder of the participation interest shall abide by the confidentiality provisions set forth herein and (vivii) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (Aa) extend ~~any Amortization Date, any~~ the applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (Bb) reduce the rate of interest on the ~~Notes~~Loan, any fee or any other monetary amount payable to the Lenders, (Cc) reduce the amount of any installment of principal due ~~under~~ with respect to the ~~Notes~~Loan, (d) release any Subsidiary Guaranty, or (De) release all or substantially all of the Collateral from the Lien of the Collateral Documents, except if such release of Collateral occurs in connection with a Disposition permitted under Section 6.2 or grant of a purchase-money Lien of the type permitted by Section 6.9(g) (unless the holder of such Lien does not prohibit a subordinate Lien on the acquired property or assets, in which case the Agent shall subordinate its Lien on such acquired property or assets in a manner acceptable to the holder of the purchase-money Lien without the need for the consent of any ~~Guarantor from~~ Lender), in which case such release shall not require the consent of any of the Lenders or of any holder of a participation interest in the Commitments and/or Loans. In the event that a participation has been granted pursuant to this Section 11.8(e) to a financial institution that is not a U.S. Person, then, upon request made by Borrower or the Agent to the Lender which granted such participation, such Lender shall cause such participant financial institution to deliver the same documents and information to Borrower and the Agent as would be required under Section 3.11(g) if such financial institution were a Lender. Each Lender that grants a participation shall, acting solely for this purpose as a non-fiduciary agent of 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 Loan 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 ~~Guaranty~~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. (fi) ~~Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender~~ No assignment or participation shall be ~~entitled~~ made to any Person that was a Disqualified Institution as of the date (the “Trade Date”) on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights ~~hereunder~~ and ~~under the Loan Documents, or grant participation interests in its rights~~ obligations under this Agreement to such Person (unless the Borrower has consented to such assignment in its sole and absolute discretion, in which case such Person will not be considered a Disqualified Institution for the ~~Loan Documents~~purpose of such assignment or participation); provided, however, that during the continuation of Event of Default under Section 9.1(a), 9.1(b) or 9.1(j), no consent of Borrower shall be required to make an assignment or participation to a Disqualified Institution. For the avoidance of doubt, with respect to any ~~Person, in whole or in any part thereof, notwithstanding any provisions contained herein~~ assignee that becomes a Disqualified Institution after the applicable Trade Date (including ~~those set forth~~ as a result of the delivery of a notice pursuant to, and/or the expiration of the notice period referred to in, the definition of “Disqualified Institution”), (x) such assignee shall not retroactively be disqualified from becoming a Lender and (y) the execution by Borrower of an Assignment and Assumption with respect to such assignee will not by itself result in ~~subsection~~ such assignee no longer being considered a Disqualified Institution (~~b) above~~provided that no additional assignment or participation shall be made to any Person that becomes a Disqualified Institution unless an Event of Default under Section 9.1(a), 9.1(b) or 9.1(j) has occurred and is continuing). Any assignment in violation of this clause (f)(i) shall not be void, but the other provisions of this clause (f) shall apply. (ii) If any ~~other Loan Document~~ assignment or participation is made to ~~the contrary, except that, other than~~ any Disqualified Institution without Borrower’s prior consent in violation of clause (i) ~~assignments by~~ above, or if any Person becomes a ~~Lender~~ Disqualified Institution after the applicable Trade Date, Borrower may, at its sole expense and effort, upon notice to ~~an Affiliate~~ the applicable Disqualified Institution and the Agent, (A) terminate any Revolving Commitment of such ~~Lender or~~ Disqualified Institution and repay all obligations of Borrower owing to ~~another Lender or~~ such Disqualified Institution in connection with such Revolving Commitment, (iiB) ~~pledges described~~ in the ~~last sentence~~ case of ~~subsection~~ any outstanding Term Loan held by Disqualified Institutions, purchase or prepay such Term Loan by paying the lesser of (ax) ~~above~~the principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such Term Loan in each case plus accrued interest, ~~no assignment shall be made~~ accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (C) require such Disqualified Institution to assign, without recourse (in accordance with and subject to the ~~approval~~ restrictions contained in this Section 11.8), all of its interest, rights and obligations under this Agreement to one or more Eligible Assignees at the ~~Administrative Agent.~~lesser of (x) the principal amount thereof and (y) the amount that such Disqualified I

Appears in 2 contracts

Sources: Credit Agreement (Viasat Inc), Credit Agreement (Viasat Inc)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of the Borrower, the Guarantor, the Administrative ~~Agent,~~ Agent and each ~~of the Lenders~~Lender, and their respective successors and permitted assigns, except that the Borrower ~~may~~ and the Guarantor shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of ~~all~~ the Administrative Agent and the Lenders, and any assignment by the Borrower or Guarantor in violation of this Section 10.8 shall be null and void. ~~Each Lender represents that it is not acquiring its Note with a view~~ Notwithstanding anything to the ~~distribution thereof within~~ contrary in the ~~meaning~~ first sentence of ~~the Securities Act of 1933~~this Section 10.8, ~~as amended (subject to~~ any ~~requirement that disposition of such Note must be within the control of such Lender). Any~~ Lender may at any ~~time pledge its Note~~ time, without the consent of the Administrative Agent, assign all or any ~~other instrument evidencing~~ portion of its rights ~~as a Lender~~ under this Agreement and any Loan Note to a Federal Reserve Bank~~, but~~ ; provided that no such assignment or pledge shall release ~~that~~ the transferor Lender from its obligations ~~hereunder or grant~~ hereunder. Subject to ~~such Federal Reserve Bank~~ the ~~rights~~ terms of ~~a Lender hereunder absent foreclosure of such pledge. (b) From time to time following~~ the ~~Closing Date~~Initial Acknowledgment Agreement and Acknowledgment Agreements, as applicable, each Lender may assign to one or more ~~Eligible Assignees~~ banks or other entities all or any part or portion of, or may grant participations to one or more banks or other entities in all or any part or portion of its rights and obligations ~~under this Agreement~~ hereunder (including ~~all or a portion of~~ its Commitment, ~~the Advances owing to it and the Note~~ its Loan Notes or ~~Notes held by it~~its Advances); provided ~~that, subject~~ that (A) each party to ~~subsection (f) below~~such assignment shall execute and deliver an Assignment and Assumption to the Administrative Agent, (iB) shall be to (x) a bank, other financial institution or lender which is reasonably acceptable to the Administrative Agent, or (y) a “qualified institutional buyer”, as defined in Rule 144A under the Securities Act of 1933, as amended, reasonably acceptable to the Administrative Agent, and (C) unless an Event of Default has occurred and is continuing, the Borrower shall have the right to consent to any assignment of the Lender’s rights and obligations under this Agreement, such ~~Eligible Assignee~~consent not to be unreasonably withheld, ~~if not then a~~ conditioned or delayed; provided that no such consent of the Administrative Agent or the Borrower shall be required for an assignment to any Lender or an Affiliate of a Lender. Upon, and to the ~~assigning Lender~~extent of, ~~shall be approved~~ any assignment (unless otherwise stated therein) made by any Lender hereunder, the ~~Administrative Agent and Borrower (neither~~ assignee or purchaser of ~~which approvals shall be unreasonably withheld or delayed), (ii)~~ such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender hereunder for all purposes of this ~~Agreement~~Agreement and shall have all the rights, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights benefits and obligations ~~hereunder being assigned thereby free and clear of any adverse claim,~~ (including the ~~assigning Lender has made no representation or warranty and assumes no responsibility with respect~~ obligation to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered provide documentation pursuant to Section ~~7.1 and such other documents and information~~ 2.15(g)) of a Lender hereunder. The Administrative Agent, acting solely for this purpose as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all an agent of the ~~obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent~~ Borrower, shall maintain at ~~the Administrative Agent’s Office a copy~~ one of ~~each Assignment and Acceptance delivered to it and~~ its offices a register (the “Register”) for the recordation of the names and ~~address of each~~ addresses of the ~~Lenders~~ Lenders, the Commitment of and ~~the Pro Rata Share~~ outstanding principal amounts (and accrued interest) of the ~~Commitments held by each Lender, giving effect~~ Advances owing to each ~~Assignment~~ Lender pursuant to the terms hereof from time to time and ~~Acceptance~~any assignment of such Commitment or outstanding Advances. The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive absent manifest error, and ~~receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee,~~ the ~~Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto.~~ Borrower, the Administrative Agent and the Lenders shall ~~deem and~~ treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each ~~case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and~~ Person whose name is recorded in the Register ~~as provided above. Prior to such recordation, all amounts owed with respect~~ pursuant to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be ~~conclusive~~ available for inspection by the Borrower and ~~binding on~~ any ~~subsequent holder~~Lender, ~~assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may~~ at any reasonable time and from time to time ~~grant participations~~ upon reasonable prior notice. Any Lender may sell participation interests in its Advances and obligations hereunder (each such recipient of a participation a “Participant”); provided that after giving effect to ~~one or more banks or other financial institutions in or to all or a portion~~ the sale of ~~its rights and/or obligations under this Agreement; provided~~such participation, ~~however, that (i)~~ such Lender’s obligations ~~under this Agreement~~ hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, ~~(ii)~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ~~(iii) the participating banks or other financial institutions shall not be a~~ all amounts payable to such Lender hereunder ~~for~~ and all rights to consent to any ~~purpose except,~~ waiver hereunder or amendment hereof shall be determined as if ~~the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of~~ such ~~benefits to Borrower does~~ Lender had not ~~exceed the cost which Borrower would have incurred in respect of the Lender granting~~ sold such participation ~~absent~~ interest, and the ~~participation, (iv) Borrower,~~ Borrower and the Administrative Agent ~~and the other Lenders~~ shall continue to deal solely and directly with such Lender and not be obligated to deal with such 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 outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction 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 Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Proposed Treasury Regulations Section 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. For the avoidance of doubt, the Administrative Agent shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.15(g) (it being understood that the documentation required under Section 2.15(g) shall be delivered to the participating Lender)), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.15 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. Notwithstanding any other provision of this Agreement to the contrary, a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to (i) a security trustee in connection with the funding by such ~~Lender’s rights and~~ Lender of Advances or (ii) a Federal Reserve Bank to secure obligations to such Federal Reserve Bank, in each case without the consent of the Borrower; provided that no such pledge or grant shall release such Lender from its obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.)

Binding Effect; Assignment. (a) This Agreement shall become effective when it shall have been executed by the Borrower and the ~~other Loan Documents to which Borrower is a Party will~~ Administrative Agent and when the Administrative Agent shall have been notified by each Bank that such Bank has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Administrative ~~Agent,~~ Agent and each ~~of the Lenders,~~ Bank and their respective successors and assigns, except that the Borrower ~~may~~ shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning~~ of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgeBanks. (b) ~~From time~~ Any Bank may assign, participate or otherwise transfer all or any part of, or interest in, such Bank’s rights and obligations hereunder and under the Notes issued to ~~time following the Closing Date, each Lender may assign~~ it hereunder to one or more ~~Eligible Assignees~~ banks or other entities (excluding natural persons); provided that (i) in the case of any assignment or other transfer (other than a participation) to a Person that is not a Bank, an Affiliate of a Bank or an Approved Fund, the Borrower (except during the continuance of an Event of Default), the Issuing Banks, the Swingline Banks and the Administrative Agent, in each case whose consent shall not be unreasonably withheld or delayed, shall have expressly agreed in writing; provided that a material increase in counterparty risk shall be reasonable grounds (although not exclusive grounds) for the withholding of such consent; and further 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 ten (10) Business Days after having received notice thereof; (ii) in the case of any assignment in part, the amount of the Commitment being assigned pursuant to such assignment shall in no event be less than $5,000,000 (or a lesser amount approved by the Administrative Agent and, except during the continuance of an Event of Default, the Borrower); and (iii) any participation shall be in compliance with Section 11.06(f). Upon the effectiveness of any such assignment (but not in the event of any such participation or other transfer), such assignee shall be a Bank hereunder and shall have all the rights and benefits thereof. However, unless and until the conditions for the Administrative Agent’s treating such assignee as holder pursuant to clause (c) below shall have been satisfied, such assignee shall not be entitled to exercise the rights of a Bank under this Agreement and the Administrative Agent shall not be obligated to make payment of any amount to which such assignee may become entitled hereunder other than to the Bank which assigned its rights to such assignee. Nothing contained herein shall impair the ability of any Bank, in its discretion, to agree, solely as between itself and its assignees, participants and other transferees, upon the manner in which such Bank shall exercise its rights under this Agreement and the Notes made to such Bank. The assignee, if it shall not already be a Bank, 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 and its affiliates and their 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. (c) In order to effect any assignment permitted hereunder by a Bank of all or any portion of its Commitment hereunder, the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined below), an agreement substantially in the form of Exhibit 11.06 hereto (an “Assignment and Acceptance”), together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 payable by the assignor or assignee. Upon such execution, delivery, acceptance and recording and delivery to the Administrative Agent of such assignee’s Administrative Questionnaire, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Bank’s rights and obligations under this ~~Agreement (including all or~~ Agreement, such Bank shall cease to be a ~~portion of its Commitment, the Advances owing~~ party hereto but shall continue to ~~it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall~~ be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished entitled to the ~~Administrative Agent as hereinbelow provided~~benefits of Sections 5.13, ~~(iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender~~ 5.15 and 11.04 for any events or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) circumstances occurring or existing before the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderassignment). (cd) By executing and delivering an Assignment and Acceptance, the ~~Eligible Assignee~~ Bank assignor thereunder ~~acknowledges~~ and ~~agrees that~~the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than ~~the representation~~ as provided in such Assignment and ~~warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim~~Acceptance, ~~the~~ such assigning ~~Lender has made~~ 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~~ genuineness, sufficiency or ~~sufficiency~~ value of this Agreement or any other ~~Loan Document~~instrument or document furnished pursuant hereto; (ii) ~~the~~ such assigning ~~Lender has made~~ 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 ~~the Obligations~~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 ~~most recent~~ financial statements referred to in Section 7.01(f) (and any later statements delivered pursuant to Section ~~7.1~~ 8.01(f)(ii)) 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) it such assignee will, independently and without reliance upon the Administrative ~~Agent~~ Agent, such assigning Bank or any ~~Lender~~ 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) it 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 ~~this Agreement~~the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Bank. (de) The Administrative ~~Agent~~ Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at ~~the Administrative Agent’s Office~~ its address referred to in Section 11.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount (and stated interest on) of the Advances owing to, each Bank from time to time (the “Register”~~) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance~~). The entries in the Register shall be ~~available during normal business hours~~ conclusive and binding for ~~inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee~~all purposes, absent manifest error, and ~~receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee,~~ the ~~Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto.~~ Borrower, the Administrative Agent and the ~~Lenders~~ Banks shall ~~deem and~~ treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each ~~case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and~~ Person whose name is recorded in the Register as ~~provided above~~a Bank hereunder for all purposes of this Agreement. ~~Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility~~ The Register shall be ~~owed to~~ available for inspection by the ~~Lender listed in the Register as the owner thereof,~~ Borrower or any Bank at any reasonable time and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time ~~grant~~ upon reasonable prior notice. (f) Any Bank may, without the consent of the Borrower, the Administrative Agent, the Issuing Banks or the Swingline Banks (but with notice to the Borrower, unless such participation is sold to an Affiliate of such Bank), sell to any Person (other than a natural Person, a Defaulting Bank or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) participations ~~to one~~ in all or ~~more banks or other financial institutions in or to~~ a portion of such Bank’s rights and/or obligations under this Agreement (including all or a portion of its ~~rights~~ Commitment and/or ~~obligations under this Agreement~~the Advances (including such Bank’s participations in Swingline Loans) owing to it); ~~provided, however,~~ provided that (i) such ~~Lender~~Bank’s obligations under this Agreement shall remain unchanged, (ii) such ~~Lender~~ Bank shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the ~~other Lenders~~ Banks shall continue to deal solely and directly with such ~~Lender~~ Bank in connection with such ~~Lender~~Bank’s rights and obligations under this Agreement. For the avoidance of doubt, ~~(v) the participation interest~~ each Bank shall be ~~expressed as~~ responsible for the indemnity under Section 10.05 without regard to the existence of any participation. Any agreement or instrument pursuant to which a ~~percentage~~ Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of ~~the granting Lender’s Pro Rata Share~~ any provision of ~~the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (~~this Agreement; provided that such agreement or ~~the aggregate Commitments pertaining thereto)~~instrument may provide that such Bank will not, ~~or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi)~~ without the consent of the ~~holder~~ Participant, agree to any amendment, waiver or other modification described in the third sentence of Section 11.01 that affects such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Participant. The Borrower agrees that ~~upon the occurrence and during the continuance of any Event of Default,~~ each ~~Lender~~ Participant shall be entitled to ~~assign~~ the benefits of Sections 5.13 and 5.15 to the same extent as if it were a Bank and had acquired its ~~rights hereunder~~ interest by assignment pursuant to this Section (it being understood that the documentation required under Section 5.15(f) shall be delivered to the Borrower and Administrative Agent) to the same extent as if it were a Bank and had acquired its interest by assignment; provided that such Participant (A) agrees to be subject to the provisions of Section 5.18 and of the last sentence of Section 5.11 as it if were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 5.13 or 5.15 with respect to any participation, than the ~~Loan Documents~~Bank 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. Each Bank that sells participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 5.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.05 as though it were a Bank; provided that such Participant agrees to be subject to Section 5.17 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 ~~grant participation interests~~ other obligations under this Agreement or any Note (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under this Agreement or any Note) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. 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 participations for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its ~~rights~~ capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (g) Notwithstanding anything contained herein to the contrary, each Bank may pledge its right, title and interest under this Agreement and any Note made to it to the ~~Loan Documents~~Board of Governors of the Federal Reserve System, ~~to any Person, in whole~~ or ~~in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in~~ any other ~~Loan Document~~ Governmental Authority, as security for financial accommodations or privileges being provided or extended to ~~the contrary, except that, other than (i) assignments~~ such Bank by ~~a Lender to an Affiliate of~~ such ~~Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~Governmental Authority.

Appears in 2 contracts

Sources: Credit Agreement (Baxter International Inc), Credit Agreement (Baxalta Inc)

Binding Effect; Assignment. ~~(a)~~ 11.10.1 This ~~Agreement~~ Agreement, the Notes and the other Loan Documents ~~to which Borrower is a Party will~~ shall be binding upon and shall inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties hereto and thereto and their respective successors and assigns, except that no Borrower ~~may not~~ nor FSI shall assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of ~~all the Lenders~~each Lender. Each Lender ~~represents~~ shall have the right in accordance with this Section 11.10 (a) to sell and assign to any Eligible Assignee all or any portion of its interest (provided that ~~it is~~ any such partial assignment shall not ~~acquiring~~ be for a principal amount of less than Five Million Dollars ($5,000,000)) under this Agreement, its ~~Note with a view~~ respective Notes and the other Loan Documents, subject to the ~~distribution thereof within~~ prior written consent of the ~~meaning~~ affected Borrower, which consent shall not be unreasonably withheld, and (b) to grant any participation or other interest herein or therein, except that each potential participant to which a Lender intends to grant any rights under Sections 2.9, 2.10, 5.1 or 10.2 shall be subject to the prior written consent of the affected Borrower, which consent shall not be unreasonably withheld; provided, however, that no such sale, assignment or participation grant shall result in requiring registration under the Securities Act of 1933, as ~~amended (subject to~~ amended, or qualification under any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgestate securities law. ~~(b) From time~~ 11.10.2 Subject to ~~time following~~ the ~~Closing Date~~limitations of this Section 11.10.2, each Lender may ~~assign~~ sell and assign, from time to ~~one or more Eligible Assignees~~ time, all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of the Commitments to any of its ~~Commitment~~Affiliates or, with the ~~Advances owing~~ approval of the affected Borrower and FSI (which approval shall not be unreasonably withheld), to ~~it and the Note or Notes held by it); provided that~~any other financial institution acceptable to Agent, subject to ~~subsection (f) below, (i)~~ the assumption by such ~~Eligible Assignee, if not then a Lender or an Affiliate~~ assignee of the ~~assigning Lender, shall be approved by~~ share of the ~~Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld~~ Commitments so assigned. The assignment to such Affiliate or ~~delayed), (ii) such assignment~~ other financial institution shall be evidenced by an Assignment and Acceptance in the form of Exhibit G ("Assignment and Acceptance") executed by the assignor Lender (hereinafter from time to time referred to as the "Assignor Lender") and such Affiliate or other financial institution (which, upon such assignment shall become a Lender hereunder (hereinafter from time to time referred to as the "Assignee Lender")). The Assignment and Acceptance need not include any of the economic or financial terms upon which such Assignee Lender receives the assignment from the Assignor Lender, and such terms need not be disclosed to or approved by such Borrower or FSI; provided only that such terms do not diminish the obligations undertaken by such Assignee Lender in the Assignment and Acceptance or increase the obligations of Borrowers or FSI under this Agreement. Upon execution of such Assignment and Acceptance, ~~a copy~~ (a) the definition of ~~which~~ "Commitments" in Section 1 hereof and the Pro Rata Shares set forth therein shall be ~~furnished~~ deemed to be amended to reflect each Lender's share of the Commitments, after giving effect to the ~~Administrative Agent~~ assignment and (b) the Assignee Lender shall, from the effective date of the Assignment And Acceptance, be subject to all of the obligations, and entitled to all of the rights, of a Lender hereunder, except as ~~hereinbelow provided, (iii) except~~ may be expressly provided to the contrary in the ~~case~~ Assignment and Acceptance. To the extent the obligations hereunder of an the Assignor Lender are assumed by the Assignee Lender, the Assignor Lender shall be relieved of such obligations. Upon the assignment of any interest by any Assignor Lender pursuant to this Section 11.10.2, such Assignor Lender agrees to supplement Schedule 1.1 to show the date of such assignment, the Assignor Lender, the Assignee Lender, the Assignee Lender's address for notice purposes and the amount of the Commitments so assigned. In connection and as a condition to each assignment hereunder, the Assignor Lender agrees to pay or to cause the Assignee Lender to pay to Agent a processing fee of $3,500; provided that no processing fee shall be charged for any assignment to ~~an Affiliate of the assigning Lender, to another~~ a Lender or a Lender Affiliate. 11.10.3 Subject to the limitations of this Section 11.10.3, any Lender may also grant, from time to time, participation interests in the ~~entire remaining rights and obligations~~ interests of ~~the assigning~~ such Lender under this Agreement, the ~~assignment~~ Notes and the other Loan Documents to any other financial institution without notice to, or approval of, any Borrower or FSI. The grant of such a participation interest shall be on such terms as the granting Lender determines are appropriate, provided only that (a) the holder of such participation interest shall not ~~assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of~~ have any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights ~~and obligations hereunder being assigned thereby free and clear~~ of ~~any adverse claim, the assigning~~ a Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so expressly provides, ~~for the purposes of~~ rights under Sections ~~3.5~~2.9, ~~3.6~~2.10, ~~11.11~~ 5.1 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation10.2, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vib) the consent of the holder of such a participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other ~~than~~ than, if the participation agreement expressly provides, those which (Ai) ~~extend~~ increase the monetary amount of any ~~Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders~~Commitment, (Bii) ~~reduce the rate of interest on the Notes,~~ decrease any fee or any other monetary amount payable to ~~the~~ Lenders~~, (C) reduce the amount of any installment of principal due under the Notes~~, or (Diii) ~~release~~ extend the date upon which any ~~Guarantor from its Guaranty~~monetary amount is payable to Lenders. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Warehousing Credit Agreement (Professional Lease Management Income Fund I LLC), Warehousing Credit Agreement (PLM Equipment Growth Fund V)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents ~~to which Borrower is a Party will~~ shall be binding upon and shall inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties hereto and thereto and their respective successors and assigns, except that Borrower and its Affiliates may not assign ~~its~~ their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Any assignment by the Borrower or its Affiliates without the prior written consent of the Lenders shall be void, provided that no Person other than the Lenders shall have any rights under this sentence. Each Lender represents that it is not acquiring ~~its~~ any Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such ~~Note~~ Notes must be within the control of such Lender). Any Lender may at any time pledge its ~~Note~~ Note, if any, or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)~~Pro Rata Share; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and, so long as no Default or Event of Default has occurred and is continuing, also by Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment ~~and Acceptance~~Agreement, a copy of which shall be furnished to the Administrative ~~Agent as hereinbelow provided~~Agent, (iii) except in the case of an assignment to an Affiliate of the assigning ~~Lender,~~ Lender or to another Lender or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall be of a Pro Rata Share of not ~~assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to~~ less than $~~3,000,000~~1,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment ~~and Acceptance~~Agreement, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date the Administrative Agent has received the Assignment ~~and Acceptance~~Agreement unless the Administrative Agent otherwise agrees. Upon the effective date of such Assignment ~~and Acceptance~~Agreement, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances therein~~ Pro Rata Share set forth therein and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~any Note in its possession) to such assignee Lender, ~~Notes~~ a Note evidencing that assignee Lender’s ~~Commitments and/or Advances~~Pro Rata Share, and to the assigning Lender, ~~Notes~~ a Note evidencing the remaining balance of the ~~Commitments and/or Advances~~ Pro Rata Share retained by the assigning ~~Lender~~Lender (in each case, if Notes are requested by such Assigning Lender or such Assignee under Section 2.1). (c) By executing and delivering an Assignment ~~and Acceptance~~Agreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section ~~7.1~~ 8.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment ~~and Acceptance~~Agreement; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment ~~and Acceptance~~ Agreement delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agentit. After receipt of a completed Assignment ~~and Acceptance~~ Agreement executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such ~~Lender or~~ Eligible Assignee, ~~the~~ Administrative Agent shall, promptly following the effective date thereof, provide notice thereof to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityLenders. (e) Each Lender may grant participations from time to time ~~grant participations~~ in a portion of its Pro Rata Share to one or more banks or other financial institutions ~~in or to all or a portion of its rights and/or obligations under this Agreement~~(including another Lender); provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.7, ~~3.6~~3.8, ~~11.11~~ 13.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation13.15, (iv) ~~Borrower, the Administrative Agent~~ Borrower and the other ~~Lenders~~ Creditors shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share ~~of the Revolving Facility~~ as it then exists and shall not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~Commitment, or in the granting Lender’s ~~rights and obligations hereunder~~Pro Rata Share, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend ~~any Amortization~~ the Maturity Date, any ~~applicable Maturity~~ Reduction Date or any ~~other~~ date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the ~~Notes~~Loans, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due ~~under~~ with respect to the ~~Notes~~Loans, or (D) release any ~~Guarantor from its Guaranty~~material portion of the Collateral. (f) ~~Borrower agrees that upon~~ Any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”) of such Granting Lender, identified as such in writing from time to time by the ~~occurrence~~ Granting Lender to the Administrative Agent and ~~during~~ the ~~continuance~~ Borrower, the option to provide all or any part of any ~~Event~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to Article 2, provided that (i) nothing herein shall constitute a commitment to make any Advance by any SPC, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of ~~Default~~such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof, and (iii) the rights of any such SPC shall be derivative of the rights of the Granting Lender. Each SPC shall be conclusively presumed to have made arrangements with its Granting Lender for the exercise of voting and other rights hereunder in a manner which is acceptable to the SPC, and the Administrative Agent, the other Creditors and each ~~Lender~~ other Party shall be entitled to ~~assign~~ rely upon and deal solely with the Granting Lender with respect to Advances made by or through its ~~rights~~ SPC. The making of an Advance by an SPC hereunder shall utilize the Pro Rata Share of the relevant Commitment of the Granting Lender to the same extent, and ~~under~~ as if, such Advance were made by the ~~Loan Documents,~~ Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or ~~grant participation interests in its rights~~ similar payment obligation under this Agreement (all liability for which shall remain with the related 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 ~~Loan Documents~~payment in full of all outstanding senior indebtedness of any SPC, to it will not institute against, or join any ~~Person~~other person in instituting against, ~~in whole~~ such SPC any bankruptcy, reorganization, arrangement, insolvency or in liquidation proceedings or similar proceedings under the laws of the United States or any ~~part~~ State thereof, provided that the Granting Lender for each SPC hereby agrees to indemnify, save, and hold harmless each other party hereto for any loss, cost, damage and expense arising out of their inability to institute any such proceeding against its SPC. In addition, notwithstanding ~~any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document~~ anything to the ~~contrary~~contrary contained in this Section, ~~except that, other than~~ any SPC may (i) ~~assignments by~~ 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 ~~Lender~~ portion of its interests in any Advance to ~~an Affiliate of such~~ its Granting Lender or to ~~another~~ any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Advances made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans (but nothing contained herein shall be construed in derogation of the obligation of the Granting Lender to make Advances hereunder), provided that neither the consent of the SPC or of any such assignee shall be required for amendments or waivers of provisions of the Loan Documents except for those amendments or waivers for which the consent of participants is required under Section 13.8(e)(vi), and (ii) ~~pledges described in the last sentence~~ disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of ~~subsection (a) above~~a surety, ~~no assignment shall be made without the approval of the Administrative Agent~~guarantee or credit or liquidity enhancement to such SPC.

Appears in 2 contracts

Sources: Loan Agreement (Mohegan Tribal Gaming Authority), Loan Agreement (Mohegan Tribal Gaming Authority)

Binding Effect; Assignment. (a) This Agreement shall become effective when it shall have been executed by the Borrower and the ~~other Loan Documents to which Borrower is a Party will~~ Administrative Agent and when the Administrative Agent shall have been notified by each Bank that such Bank has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Administrative ~~Agent,~~ Agent and each ~~of the Lenders,~~ Bank and their respective successors and assigns, except that the Borrower ~~may~~ shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning~~ of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgeBanks. (b) ~~From time~~ Any Bank may assign, participate or otherwise transfer all or any part of, or interest in, such Bank’s rights and obligations hereunder and under the Notes issued to ~~time following the Closing Date, each Lender may assign~~ it hereunder to one or more ~~Eligible Assignees~~ banks or other entities; provided that (i) in the case of any transfer to a Person that is not a Bank, an Affiliate of a Bank or an Approved Fund, unless (except during the continuance of an Event of Default) the Borrower (whose consent shall not be unreasonably withheld or delayed) and the Administrative Agent (whose consent shall not be unreasonably withheld or delayed) shall have expressly agreed in writing, no Bank shall, by reason of any such transfer, be relieved of any of its obligations or responsibilities to the Borrower hereunder, including without limitation the obligation to make Advances in accordance with the provisions of Article II and III, if any, or under any Note issued to it hereunder or the obligation to the Issuing Banks hereunder to participate in Letters of Credit in accordance with the terms of Article IV, and (ii) in the case of any assignment, the amount of the Commitment being assigned pursuant to such assignment shall in no event be less than $5,000,000 (or a lesser amount approved by the Administrative Agent); provided, further, that during the continuance of any Event of Default hereunder, the consent of the Borrower to any such assignment shall not be required. To the extent of any such assignment (but not in the event of any such participation or other transfer) such assignee shall have the same rights and benefits against the Borrower as it would have had if it were a Bank hereunder. However, (i) unless and until the conditions for the Administrative Agent’s treating such assignee as holder pursuant to clause (c) below shall have been satisfied, such assignee shall not be entitled to exercise the rights of a Bank under this Agreement and the Administrative Agent shall not be obligated to make payment of any amount to which such assignee may become entitled hereunder other than to the Bank which assigned its rights to such assignee and (ii) such assignee shall not be included for purposes of determining the number of Banks whose consent shall be required to take any action or refrain from taking any action hereunder or be entitled to exercise any voting rights hereunder unless (A) such assignee shall have acquired the respective assignor’s entire interest under this Agreement and in the Notes made to such assignor or (B) if such assignee shall have acquired less than the respective assignor’s entire interest herein and under such Notes, the Borrower shall have expressly agreed to such inclusion of such assignee and such exercise by such assignee. Nothing contained herein shall impair the ability of any Bank, in its discretion, to agree, solely as between itself and its assignees, participants and other transferees, upon the manner in which such Bank shall exercise its rights under this Agreement and the Notes made to such Bank. (c) In order to effect any assignment permitted hereunder by a Bank of all or any portion of its Commitment hereunder, the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined below), an agreement substantially in the form of Exhibit 11.06 hereto (an “Assignment and Acceptance”), together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Bank’s rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, ~~the assignment~~ such Bank shall ~~not assign a portion of such assigning Lender’s Commitments and/or Advances owing~~ cease to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderparty hereto). (cd) By executing and delivering an Assignment and Acceptance, the ~~Eligible Assignee~~ Bank assignor thereunder ~~acknowledges~~ and ~~agrees that~~the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than ~~the representation~~ as provided in such Assignment and ~~warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim~~Acceptance, ~~the~~ such assigning ~~Lender has made~~ 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~~ genuineness, sufficiency or ~~sufficiency~~ value of this Agreement or any other ~~Loan Document~~instrument or document furnished pursuant hereto; (ii) ~~the~~ such assigning ~~Lender has made~~ 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 ~~the Obligations~~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 ~~most recent~~ financial statements referred to in Section 7.01(f) (and any later statements delivered pursuant to Section ~~7.1~~ 8.01(g)(ii)) 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) it such assignee will, independently and without reliance upon the Administrative ~~Agent~~ Agent, such assigning Bank or any ~~Lender~~ 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) it 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 ~~this Agreement~~the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Bank. (de) The Administrative Agent shall maintain at ~~the Administrative Agent’s Office~~ its address referred to in Section 11.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Advances owing to, each Bank from time to time (the “Register”~~) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance~~). The entries in the Register shall be ~~available during normal business hours~~ conclusive and binding for ~~inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee~~all purposes, absent manifest error, and ~~receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee,~~ the ~~Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto.~~ Borrower, the Administrative Agent and the ~~Lenders shall deem and~~ Banks may treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each ~~case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and~~ Person whose name is recorded in the Register as ~~provided above~~a Bank hereunder for all purposes of this Agreement. ~~Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility~~ The Register shall be ~~owed to~~ available for inspection by the ~~Lender listed in the Register as the owner thereof,~~ Borrower or any Bank at any reasonable time and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyreasonable prior notice. (f) ~~Borrower agrees that upon~~ Notwithstanding anything contained herein to the ~~occurrence and during the continuance of any Event of Default~~contrary, each ~~Lender shall be entitled to assign~~ Bank may pledge its ~~rights hereunder~~ right, title and ~~under the Loan Documents, or grant participation interests in its rights~~ interest under this Agreement and any Note made to it to the ~~Loan Documents~~Board of Governors of the Federal Reserve System, ~~to any Person, in whole~~ or ~~in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in~~ any other ~~Loan Document~~ Governmental Authority, as security for financial accommodations or privileges being provided or extended to ~~the contrary, except that, other than (i) assignments~~ such Bank by ~~a Lender to an Affiliate of~~ such ~~Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~Governmental Authority.

Appears in 2 contracts

Sources: Credit Agreement (Baxter International Inc), Credit Agreement (Baxter International Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which ~~Borrower~~ any Obligor is a ~~Party~~ party will be binding upon and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of~~ relevant Obligor and the ~~Lenders~~Creditors, and their respective successors and assigns, ~~except~~ EXCEPT that ~~Borrower~~ the Obligors may not assign ~~its~~ their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Notwithstanding the preceding sentence, Borrower may when no Default or Event of Default has occurred and remains continuing, assign the Commitments to a limited liability company which (i) is wholly-owned, directly or indirectly by Delaware North, (ii) concurrently assumes the Obligations and the Obligations under the Senior Unsecured Notes pursuant to a transaction and documents which are acceptable to the Administrative Agent, and (iii) succeeds to substantially all of the assets, rights and privileges of the Borrower (including without limitation the Collateral and all gaming licenses held by Borrower). Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the ~~Closing~~ Effective Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)~~Pro Rata Share; ~~provided that, subject to subsection (f) below,~~ PROVIDED that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), PROVIDED that the consent of Borrower to assignments shall not be required when any Default or Event of Default has occurred and remains continuing, (ii) such assignment shall be evidenced by an Assignment ~~and Acceptance~~Agreement, a copy of which shall be furnished to the Administrative Agent as ~~hereinbelow provided~~provided below, (iii) ~~except~~ EXCEPT in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is~~ the Commitment equivalent to less than $~~3,000,000~~1,500,000, ~~and~~ (iv) the effective date of any such assignment shall be as specified in the Assignment ~~and Acceptance~~Agreement, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date the Administrative Agent has received the Assignment Agreement, and ~~Acceptance~~(v) no Lender shall make any assignment to an Assignee which has been found by the West Virginia State Lottery Commission or the West Virginia State Racing Commission, acting under applicable Law, to be unsuitable as a Lender. Upon the effective date of such Assignment ~~and Acceptance~~Agreement, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under ~~this Agreement~~the Loan Documents. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~its Note) to such assignee Lender, ~~Notes~~ a Note evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share, and to the assigning Lender, ~~Notes~~ a Note evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an Assignment ~~and Acceptance~~Agreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment ~~and Acceptance~~Agreement; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Assignment ~~and Acceptance~~ Agreement delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agentit. After receipt of a completed Assignment ~~and Acceptance~~ Agreement executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such ~~Lender or~~ Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised ~~Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners~~ list of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or Lenders giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facilityeffect thereto. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (INCLUDING another Lender) in ~~or to~~ all or a portion of its ~~rights and/or obligations under this Agreement~~Pro Rata Share; ~~provided~~PROVIDED, ~~however~~HOWEVER, that (i) Borrower shall have provided its written approval to such participation (such approval shall not be unreasonably withheld or delayed), (ii) such Lender’s 's obligations under this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (~~iii~~iv) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose ~~except~~EXCEPT, if the participation ~~agreement~~ Agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and ~~11.21~~ 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, (ivv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (vvi) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share ~~of the Revolving Facility~~ as it then exists and shall not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~Commitment, or in the granting Lender~~’s rights and obligations hereunder~~'s Pro Rata Share, so long as the amount of the participation interest is not affected thereby and (vivii) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents ~~other than~~ OTHER THAN those which (A) extend ~~any Amortization Date, any applicable~~ the Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on payable with respect to the ~~Notes~~participation, any fee or any other monetary amount payable to the ~~Lenders~~participant, (C) reduce the amount of any installment of principal due under the ~~Notes~~Notes in a manner which affects the participant, or (D) release any ~~Guarantor from its Guaranty~~material portion of the Collateral, (E) increase the Commitment, only if the participant's Commitment is increased. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests Notwithstanding anything in ~~its rights under~~ this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Section 11.8 to the contrary, ~~except that~~the rights of the Lenders to make assignments of, ~~other than (i) assignments by a Lender to an Affiliate~~ and grant participations in, their Pro Rata Shares of ~~such Lender or to another Lender or (ii) pledges described in~~ the ~~last sentence of subsection (a) above, no assignment~~ Commitment shall be ~~made without~~ subject to the approval of any Regulatory Board (including the approval of the ~~Administrative Agent~~identity of any proposed assignee or participant), to the extent required by Applicable Regulations.

Appears in 2 contracts

Sources: Loan Agreement (Wheeling Land Development Corp), Loan Agreement (Wdra Food Service Inc)

Binding Effect; Assignment. ~~(a)~~ This Agreement shall become effective when it shall have been executed by each of the parties hereto and ~~the other Loan Documents to which Borrower is a Party will~~ thereafter shall be binding ~~upon and~~ upon, inure to the benefit of ~~Borrower, the Administrative Agent, each of the Lenders,~~ and be enforceable by such parties and their respective permitted successors and assigns~~, except that Borrower may not~~ . No Credit Party shall have the right to assign its rights and obligations hereunder or ~~thereunder~~ under the other Facility Documents or any interest herein or therein without the prior written consent of ~~all~~ the ~~Lenders~~Agent (acting on the instructions of the Lenders in the case of this Agreement and the Production Payment Termination Fee Holder in the case of the Production Payment Agreement Termination Agreement). Each ~~Lender represents that it is not acquiring its Note with a view~~ relevant Transaction Party reserves the right to ~~the distribution thereof within the meaning of the Securities Act of 1933~~sell, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bankassign, ~~but no such pledge shall release that Lender from its obligations hereunder~~ transfer or grant ~~to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date~~participations in, ~~each Lender may assign to one or more Eligible Assignees~~ all or any portion of ~~its~~ such Transaction Party’s rights and obligations hereunder and under ~~this Agreement~~ the other Facility Documents to which it is a party to any other Person, provided that (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of ~~an assignment to an Affiliate~~ a grant of a participation) (i) any such act shall require the prior written consent of the ~~assigning Lender, to another Lender or~~ Agent (acting in accordance with the instructions of the ~~entire remaining rights and obligations~~ Majority Creditors, in their sole discretion); (ii) any such sale, assignment or transfer to a Person to whom Payments hereunder or under the Production Payment Agreement Termination Agreement would result in the Borrower having to pay additional amounts under Section 11.5(b)(v) (in amounts greater than those, if any, which would have been payable had the sale, assignment or transfer not been made) shall require the prior written consent of the ~~assigning Lender~~ Borrower (unless a Default has occurred in which case no prior consent from the Borrower shall be required); (iii) the right to receive any Securities may not be assigned unless the proposed assignment complies with all Applicable Securities Legislation and provided further that the Borrower shall have no obligation to issue Securities to any assignee if such issuance would require the preparation or filing of any prospectus, registration statement or similar document under ~~this Agreement~~any Applicable Securities Legislation or otherwise violate any Applicable Securities Legislation, provided always that in such circumstances, the ~~assignment~~ Borrower shall ~~not assign a portion~~ deliver the cash equivalent of any such ~~assigning Lender’s Commitments and/or Advances owing~~ Securities to ~~such assigning Lender that is equivalent to less than $3,000,000,~~ be issued) and (iv) ~~the effective date~~ no assignment, transfer or grant of participations in all or any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date portion of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder ~~shall~~ and under the other Facility Documents may be ~~effective, in each case unless~~ made to any Person prohibited from holding any such rights and ~~until an Assignment and Acceptance effecting~~ obligations under Applicable Law. In the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent event of any ~~Person who~~such grant of a participation, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such granting Lender’s obligations under this Agreement to the Borrower shall (except as set forth in the preceding sentence) remain unchanged, ~~(ii)~~ such Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent thereof and the ~~other Lenders~~ Credit Parties shall continue to ~~deal solely and directly with~~ be obligated to such Lender in connection with such Lender’s rights under this Agreement and the other Facility Documents (including in respect of the interest in respect of which the Lender has granted a participation). In the event of any such assignment, upon written notice thereof to the Borrower, the assignee shall be deemed to be a “Lender” for all purposes of the Facility Documents with respect to the rights and obligations assigned to it, and the rights and obligations of the assigning Lender so assigned shall thereupon terminate. The Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register for the recordation of the names and addresses of the Lenders and principal amounts (and stated interest) of the loan owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Credit Parties and the Finance Parties shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. The Borrower and each other Credit Party shall, from time to time upon request of the Agent, enter into such amendments to the Facility Documents and execute and deliver such other documents as shall be necessary to effect any such grant or assignment. The Borrower agrees that in connection with any such grant or assignment, the Agent may deliver to the prospective participant or assignee financial statements and other relevant information relating to the Borrower and the Subsidiaries. In the event of any such participation, 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 loans or other obligations under this ~~Agreement,~~ Agreement (v) the ~~participation interest~~ “Participant Register”); provided that no Lender shall ~~be expressed as a percentage~~ have any obligation to disclose the identity of the ~~granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (~~Participant or the ~~aggregate Commitments pertaining thereto), or in~~ amount such Participant holds. The Initial Lender hereby undertakes to use its commercially reasonable best efforts to provide the ~~granting Lender’s rights and obligations hereunder, so long as the amount~~ Borrower with at least 14 days prior notice of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its ~~Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled~~ intent to assign its rights hereunder ~~and under~~ to any Person which is not an affiliate of the ~~Loan Documents, or grant participation interests in its~~ Initial Lender. Any failure to provide such notice shall not derogate from the Initial Lender’s rights ~~under this Agreement~~ hereunder and the ~~Loan Documents, to~~ Borrower shall not make any ~~Person, in whole~~ claim for compensation or in damages as a result of any ~~part thereof, notwithstanding~~ such failure. Notwithstanding any ~~provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to~~ of the ~~contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above~~foregoing, no assignment hereunder by any party hereto unless the relevant assignee shall have acknowledged the terms of, and agreed to be ~~made without~~ bound by, the ~~approval of the Administrative Agent~~Intercreditor Agreement.

Appears in 2 contracts

Sources: Second Lien Credit Agreement (Platinum Group Metals LTD), Second Lien Credit Agreement (Platinum Group Metals LTD)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon Purchaser and, subject to entry of the Bidding Procedures Order (with respect to the matters covered thereby) and the Sale Order, Seller, and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ Parties and their respective successors and permitted assigns, ~~except that Borrower may not assign its rights hereunder~~ including any trustee or ~~thereunder~~ estate representative appointed in the Bankruptcy Cases or any ~~interest herein~~ successor Chapter 7 case. Nothing in this Agreement shall create or ~~therein~~ be deemed to create any third party beneficiary rights in any Person or entity not a party to this Agreement except as provided below. No assignment of this Agreement or of any rights or obligations hereunder may be made by Seller or Purchaser (by operation of law or otherwise) without the prior written consent of ~~all~~ the ~~Lenders~~other Parties and any attempted assignment without such required consents shall be void, except for designations by Purchaser to a Designated Purchaser (as defined below) in accordance with the immediately following paragraph. ~~Each Lender represents that it is not acquiring its Note~~ In connection with ~~a view~~ the Closing, notwithstanding anything to the ~~distribution thereof within~~ contrary contained herein, Purchaser shall be entitled to designate, in accordance with the ~~meaning~~ terms of this paragraph, one or more Subsidiaries or Affiliates to (a) purchase specified Purchased Assets (including specified Assigned Contracts) and pay the ~~Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note~~ corresponding Purchase Price amount or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) ~~From time~~ assume specified Assumed Liabilities (any such Subsidiary or Affiliate of Purchaser that shall be designated in accordance with this clause, a “Designated Purchaser”). In addition, in accordance with Section 6.1, a Designated Purchaser shall be entitled to ~~time following~~ employ specified Transferred Employees on and after the Closing Date. Upon any such designation of a Designated Purchaser, ~~each Lender may assign~~ such Designated Purchaser shall be principally responsible with respect to ~~one or more Eligible Assignees all or any portion~~ the payment of ~~its rights~~ the corresponding Purchase Price, the specified Assumed Liabilities and ~~obligations under~~ employment of the specified Transferred Employees. Any reference to Purchaser made in this Agreement ~~(including all~~ in respect of any purchase, assumption or employment referred to in this paragraph shall be deemed a ~~portion~~ reference to the appropriate Designated Purchaser, if any, with respect to the given obligation. All obligations of ~~its Commitment~~Purchaser and the Designated Purchasers shall be joint and several. The above designations shall be made by Purchaser by way of a written notice to be delivered to Seller in no event later than the Business Day prior to Closing. In addition, the ~~Advances owing~~ Parties agree to ~~it and~~ modify any Closing deliverables in accordance with the ~~Note~~ foregoing assignment. No such designation or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date relieve Purchaser of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Asset Purchase Agreement (Ciber Inc), Asset Purchase Agreement (Ciber Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the~~ Administrative Agent, ~~each of the Lenders,~~ Lenders and their respective successors and assigns, except ~~that~~ that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to~~ Lenders and any ~~requirement that disposition of~~ such ~~Note must~~ attempted assignment shall be ~~within the control of such Lender)~~void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve ~~Bank~~Lender, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve ~~Bank~~ Lender the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights~~ Commitments and ~~obligations under this Agreement (including all or a portion~~ its Pro Rata Share of ~~its Commitment,~~ the ~~Advances owing to it and the Note or Notes held by it)~~Extensions of Credit; provided ~~that, subject to subsection (f) below,~~ that (i) such ~~Eligible Assignee~~assignment, if not ~~then~~ to a Lender or an Affiliate of the assigning Lender, shall be ~~approved~~ consented to by Borrower at all times other than during the existence of a Default or Event of Default and Administrative Agent and Issuing Lender (which approval of Borrower ~~(neither of which approvals~~ shall not be unreasonably withheld or delayed), (ii) ~~such assignment shall be evidenced by an Assignment and Acceptance,~~ a copy of ~~which~~ a duly signed and completed Notice of Assignment and Acceptance shall be ~~furnished~~ delivered to ~~the~~ Administrative ~~Agent as hereinbelow provided~~Agent, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitments of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is~~ Pro Rata Share equivalent to less than ~~$3,000,000~~the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Notice of Assignment and Acceptance, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Notice of Assignment and Acceptance. Upon ~~the effective date~~ acceptance by Administrative Agent of such Notice Assignment and ~~Acceptance~~Acceptance and consent thereto by Administrative Agent and Issuing Lender and payment of the requisite fee described below, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~any Note) to such assignee Lender, one or more Notes evidencing that assignee Lender’s ~~Commitments and/or Advances~~Pro Rata Share, and to the assigning ~~Lender~~Lender if requested, one or more Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. Administrative Agent’s consent to and acceptance of any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Notice of Assignment and ~~Acceptance executed by any Lender and an Eligible Assignee~~Acceptance, and receipt of an assignment fee of $3,500 from such ~~Lender or~~ Eligible ~~Assignee~~Assignee (including Affiliates of assigning Lenders), ~~the~~ Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and ~~the~~ Lenders a revised Schedule ~~1.1~~ 11.02 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (ed) Each Lender may from time to time grant participations to one or more banks or other financial institutions ~~in or to~~ (including another Lender) all or a any portion of its ~~rights and/or obligations under this Agreement~~Commitments and its Pro Rata Share of the Extensions of Credit; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6, 11.11 and 11.21~~ Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation) and subject to Sections 10.05 and 10.06, (iv) Borrower, ~~the~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation ~~interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and~~ shall not restrict an increase in the ~~Revolving Facility (or the aggregate~~ Commitments ~~pertaining thereto),~~ or in ~~the~~ granting Lender’s ~~rights and obligations hereunder~~Pro Rata Share, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan ~~Documents other than those~~ Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter which (Aa) ~~extend any Amortization Date, any applicable~~ extends the Maturity Date as to such participant or any other date upon which any payment of money is due to ~~the Lenders~~such participant, (Bb) ~~reduce~~ reduces the rate of interest ~~on the Notes~~owing to such participant, any fee or any other monetary amount ~~payable~~ owing to ~~the Lenders~~such participant, or (Cc) ~~reduce~~ reduces the amount of any installment of principal ~~due under the Notes, or (D) release any Guarantor from its Guaranty~~owing to such participant. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Credit Agreement (Stater Bros Holdings Inc), Credit Agreement (Stater Bros Holdings Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of ~~Borrower~~Co-Borrowers, ~~the~~ Administrative Agent, ~~each of the Lenders,~~ Lenders and their respective successors and assigns, except ~~that~~ that, a Co-Borrower may ~~not~~ not, except as permitted by Section 7.03, assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to~~ Lenders and any ~~requirement that disposition of~~ such ~~Note must~~ attempted assignment shall be ~~within the control of such Lender)~~void. Any Lender may at any time pledge ~~its~~ a Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve ~~Bank~~Bank or, if such Lender is a fund, to any trustee or to any other representative of holders of obligations owed or securities issued by such fund as security for such obligations or securities, but no such pledge shall release ~~that~~ such Lender from its obligations hereunder or grant to such Federal Reserve Bank or trust or other representative the rights of a Lender hereunder absent foreclosure of such pledge, and any transfer to any Person upon the enforcement of such pledge shall be subject to this Section 10.04. (b) From time to time following the ~~Closing Date~~date of this Agreement, each Lender may assign to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (with any such bank, financial institution or other entity that is not an Affiliate of the assigning Lender being required to have a combined capital and surplus of at least $250,000,000 (such qualifications being subject to waiver by Borrower and Administrative Agent)), all or any portion of its rights and obligations under this Agreement ~~(including all or a portion of its Commitment, the Advances owing to it~~ and the ~~Note or Notes held by it)~~other Loan Documents; provided ~~that, subject to subsection (f) below,~~ that (i) such ~~Eligible Assignee~~assignment, if not ~~then~~ to a Lender or an Affiliate of ~~the assigning~~ a Lender, shall be ~~approved by the Administrative Agent and Borrower~~ consented to (~~neither of~~ which ~~approvals~~ consents shall not be unreasonably ~~withheld or delayed)~~withheld) by Borrower at all times other than during the existence of an Event of Default and by Administrative Agent, (ii) ~~such assignment shall be evidenced by an Assignment and Acceptance,~~ a copy of ~~which~~ a duly signed and completed Assignment and Acceptance shall be ~~furnished~~ delivered to ~~the~~ Administrative ~~Agent as hereinbelow provided~~Agent, (iii) except in the case of an assignment (A) to an Affiliate of a Lender or to another Lender or (B) of the entire remaining Revolving Commitment of the assigning Lender, ~~to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the~~ such assignment shall be in an aggregate principal amount not ~~assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to~~ less than ~~$3,000,000~~the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Assignment and Acceptance. Upon obtaining any consent required as set forth in the ~~effective date~~ prior sentence, any forms required by Section 10.20 and payment of ~~such Assignment and Acceptance~~the requisite fee described below, the ~~Eligible Assignee~~ assignee named therein shall be a Lender for all purposes of this ~~Agreement, with the Commitments and/or Advances therein set forth and,~~ Agreement to the extent of the Assigned Interest (as defined in such ~~Commitments and/or Advances~~Assignment and Acceptance), and, except for rights and obligations which by their terms survive termination of any Revolving Commitments, the assigning Lender shall be released from ~~its~~ any further obligations under this ~~Agreement~~Agreement to the extent of such Assigned Interest. ~~Borrower agrees that it~~ Upon request, Co-Borrowers shall execute and deliver ~~(against delivery by~~ new or replacement Notes to the assigning Lender and the assignee Lender to ~~Borrower of such Lender~~evidence Loans made by them. Administrative Agent’s ~~Notes)~~ consent to ~~such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances,~~ any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. Administrative Agent shall record the information contained in the Assignment and to Acceptance in the ~~assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender~~Register. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and ~~Acceptance executed by any Lender and an Eligible Assignee~~Acceptance, and receipt of an assignment fee of $3,500 from such assignee and/or such assigning Lender ~~or Eligible Assignee~~(including in the case of assignments to Affiliates of assigning Lenders), ~~the~~ Administrative Agent ~~shall,~~ shall promptly ~~following~~ accept such Assignment and Acceptance and record the information contained therein in the Register on the effective date ~~thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect~~ determined pursuant thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (ed) Each Lender may from time to ~~time~~ time, without the consent of any other Person, grant participations to one or more ~~banks or~~ other ~~financial institutions~~ Persons (including another Lender) in ~~or to~~ all or a any portion of its ~~rights and/or obligations~~ Revolving Commitments, Extensions of Credit or any other interest of such Lender hereunder and under ~~this Agreement~~the 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 the performance of such obligations, (iii) the participating ~~banks~~ bank or other financial ~~institutions~~ institution shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6, 11.11 and 11.21~~ the increased cost provisions of Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation) and for purposes of Section 10.06, (iv) Borrower, ~~the~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan ~~Documents other than those~~ Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent (as between the assigning Lender and such participant) to any matter which (A) ~~extend any Amortization Date, any applicable Maturity~~ extends the Revolving Termination Date as to such participant or any other date upon which any payment of money is due to ~~the Lenders~~such participant, (B) ~~reduce~~ reduces the rate of interest ~~on the Notes,~~ owing to such participant or any fee or any other monetary amount ~~payable~~ owing to ~~the Lenders~~such participant, or (C) ~~reduce~~ reduces the amount of any ~~installment~~ scheduled payment of principal ~~due under~~ owing to such participant. Any Lender that sells a participation to any Person that is a “foreign corporation, partnership or trust” within the ~~Notes,~~ meaning of the Code shall include in its participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.20 as if such Person were a Lender and provide that Administrative Agent and Borrower shall be third party beneficiaries of such covenant. Each Lender that sells or grants a participation shall (Da) ~~release any Guarantor~~ withhold or deduct from ~~its Guaranty. (f) Borrower agrees that upon~~ each payment to the ~~occurrence and during~~ holder of such participation the ~~continuance~~ amount of any ~~Event of Default~~tax required under applicable law to be withheld or deducted from such payment and not withheld or deducted therefrom by Borrower or Administrative Agent, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) ~~above)~~ pay the tax so withheld or ~~in any other Loan Document~~ deducted by it to the ~~contrary~~appropriate taxing authority in accordance with applicable law and (c) indemnify Borrower and Administrative Agent for any losses, ~~except that, other than (i) assignments by~~ cost and expenses that they may incur as a ~~Lender~~ result of any failure to ~~an Affiliate of~~ so withhold or deduct and pay such ~~Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~tax.

Appears in 2 contracts

Sources: Credit Agreement (Comcast Corp), Credit Agreement (Comcast Corp)

Binding Effect; Assignment. (a) ~~This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure~~ Notwithstanding anything herein to the ~~benefit of Borrower~~contrary, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of ~~a Lender hereunder absent foreclosure~~ (x) any Former Preferred Holder under ARTICLE XVIII, ARTICLE XIX and ARTICLE XX and (y) any Target Holder under ARTICLE XX may be assigned, and (i) the Company is, within reasonable time after such transfer, furnished with written notice of the name and address of such ~~pledge~~transferee or assignee and the securities with respect to which such rights are being assigned and (ii) such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this ARTICLE XXI and the terms and conditions of each Section of this Agreement with respect to which any rights are being assigned thereto under this clause. From the time of such transfer or assignment, for all purposes of each Section of this agreement with respect to which rights are assigned thereto under this clause, such transferee or assignee shall be treated as a "Former Preferred Holder" or "Target Holder", as the case may be. (b) ~~From time~~ Notwithstanding anything herein to ~~time following~~ the ~~Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment~~contrary, the ~~Advances owing~~ rights of any Holder under ARTICLE XVI may be assigned to it the extent such Holder transfers any Registrable Securities held thereby to another Person in compliance with ARTICLE XVIII and ~~the Note or Notes held by it); provided that, subject to subsection (f) below,~~ (i) the Company is, within a reasonable time after such ~~Eligible Assignee~~transfer, ~~if not then a Lender or an Affiliate~~ furnished with written notice of the ~~assigning Lender, shall be approved by~~ name and address of such transferee or assignee and the ~~Administrative Agent and Borrower (neither of~~ securities with respect to which ~~approvals shall be unreasonably withheld or delayed),~~ such rights are being assigned; (ii) such ~~assignment shall~~ transferee or assignee agrees in writing to be ~~evidenced~~ bound by ~~an Assignment~~ and ~~Acceptance, a copy of which shall be furnished~~ subject to the ~~Administrative Agent as hereinbelow provided,~~ terms and conditions of ARTICLE XVI and this ARTICLE XXI; and (iii) ~~except in~~ immediately following such transfer or assignment the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion further disposition of such ~~assigning Lender’s Commitments and/or Advances owing to such assigning Lender that~~ securities by the transferee or assignee is ~~equivalent to less than $3,000,000, and (iv)~~ restricted under Applicable Securities Law. From the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date time of such ~~Assignment and Acceptance~~transfer or assignment, ~~the Eligible Assignee named therein shall be a Lender~~ for all purposes of ~~this Agreement~~ARTICLE XVI, ~~with the Commitments and/or Advances therein set forth and, to the extent of~~ such ~~Commitments and/or Advances, the assigning Lender~~ transferee or assignee shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lendertreated as a "Holder". (c) ~~By executing~~ This Agreement shall be binding upon and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held enforceable by each ~~Lender~~party, ~~giving effect to each Assignment~~ its successors and ~~Acceptance~~permitted assigns. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register Except as provided ~~above~~in Section SECTION 21.1. ~~Prior to such recordation~~(a) and Section SECTION 21.1. (b), ~~all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and~~ no party may assign any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights ~~and/or~~ or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the prior written approval of the ~~Administrative Agent~~other parties.

Appears in 2 contracts

Sources: Share Purchase Agreement (Focus Media Holding LTD), Share Purchase Agreement (Focus Media Holding LTD)

Binding Effect; Assignment. ~~(a)~~ This ~~Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and~~ Warrant shall inure to the benefit of ~~Borrower,~~ and be binding upon the ~~Administrative Agent, each of~~ Company and the ~~Lenders,~~ Holder and their respective ~~successors~~ successors, heirs, legal representatives and permitted assigns. This Warrant and the Warrant Shares (collectively, ~~except that Borrower~~ “Securities”) may only be disposed of pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from or in a transaction not ~~assign its rights hereunder or thereunder or~~ subject to the registration requirements of the Securities Act, and in compliance with any ~~interest herein or therein without~~ applicable federal and state securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement, transfer may only be made with the prior written consent of ~~all~~ the ~~Lenders. Each Lender represents that it is~~ Company, which shall not ~~acquiring its Note with a view~~ be unreasonably withheld, and the Company may require the transferor to provide to the ~~distribution thereof within~~ Company an opinion of counsel selected by the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitmenttransferor, the ~~Advances owing to it~~ form and ~~the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate~~ substance of ~~the assigning Lender,~~ which opinion shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished reasonably satisfactory to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth andCompany, to the ~~extent~~ effect that such transfer does not require registration of such ~~Commitments and/or Advances,~~ transferred securities under the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this AgreementSecurities Act; provided, however, that ~~(i) such Lender’s obligations under this Agreement~~ notwithstanding the foregoing, no consent of the Company shall ~~remain unchanged, (ii) such Lender shall remain solely responsible~~ be required for the assignment or transfer of rights hereunder by a Holder to the ~~other parties hereto for the performance~~ spouse, ancestors, lineal descendants or siblings of such ~~obligations~~assignor or transferor, provided the transferee(s) certify to the Company that each is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act and that it is acquiring the Securities solely for investment purposes. The Company shall register the transfer of any portion of this Warrant, upon surrender of this Warrant with the Form of Assignment attached hereto duly completed and signed, to the Company’s transfer agent or to the Company at the office specified in Section 8.2. Upon any such transfer, a new warrant to purchase Common Stock, in substantially the form of this Warrant (~~iii)~~ any such new warrant, a “New Warrant”), evidencing the ~~participating banks or other financial institutions~~ portion of this Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining portion of this Warrant not ~~be a Lender hereunder for any purpose except~~so transferred, if ~~the participation agreement so provides~~any, ~~for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only~~ shall be issued to the ~~extent that~~ transferring Holder. The acceptance of a New Warrant by the ~~cost~~ transferee shall be deemed the acceptance by such transferee of ~~such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect~~ all of the Lender granting such participation absent the participation, (iv) 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~~of a holder of a Warrant. This Warrant is exchangeable, ~~(v)~~ upon the ~~participation interest shall be expressed as a percentage~~ surrender hereof by the Holder to the office of the ~~granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase~~ Company specified in Section 8.2, for one or more New Warrants evidencing in the ~~Revolving Facility (or~~ aggregate the ~~aggregate Commitments pertaining thereto), or in~~ right to purchase the ~~granting Lender’s rights and obligations~~ number of Warrant Shares which may then be purchased hereunder~~, so long as~~ . Any such New Warrant will be dated the ~~amount of the participation interest is not affected thereby and (vi) the consent of the holder~~ date of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyexchange. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Warrant Agreement (Microfield Group Inc), Warrant Agreement (Microfield Group Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, the Collateral Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its Commitment,~~ the ~~Advances owing to it and the Note or Notes held by it)~~Commitments; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and the Issuing Lender and (if no Event of Default then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitments of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s~~ the Commitments ~~and/or Advances owing to such assigning Lender~~ that is equivalent to less than $~~3,000,000,~~ 5,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments ~~and/or Advances~~ therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s~~ its Notes) to such assignee Lender, Notes evidencing that assignee Lender’s ~~Commitments and/or Advances~~Pro Rata Share of the Commitments, and to the assigning Lender, Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share of the Commitments being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent, the Collateral 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; (v) it appoints and authorizes the Administrative Agent and the Collateral Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Commitment Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent, the Collateral Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata ~~Shares~~ Share of the ~~Revolving Facility~~ Commitments listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Pro Rata Share of the Commitments shall be effective, in each case unless and until an a Commitment Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the ~~Revolving Facility~~ Commitments shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the ~~Revolving Facility~~Commitments. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Pro Rata Share of the Commitments; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.6, ~~3.6~~3.7, 11.11 and ~~11.21~~ 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, (iv) Borrower, the Administrative ~~Agent~~ Agent, the Collateral Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the ~~Revolving Facility~~ Commitments as it then exists and shall not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~Commitments, or in the granting Lender’s ~~rights and obligations hereunder~~Pro Rata Share of the Commitments, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, (vi) the holder of the participation interest shall abide by the confidentiality provisions set forth herein and (vivii) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (Aa) extend ~~any Amortization Date, any applicable~~ the Revolving Loan Maturity Date or any other date upon which any payment of money is due to the Lenders, (Bb) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (Cc) reduce the amount of any installment of principal due under the Notes, or (Dd) release any ~~Guarantor~~ Subsidiary Guaranty, or (E) release all or substantially all of the Collateral from the Lien of the Collateral Documents, except if such release of Collateral occurs in connection with a Disposition permitted under Section 6.2 or grant of a purchase-money Lien of the type specified in clause (s) of the definition of “Permitted Encumbrances” (unless the holder of such Lien does not prohibit a subordinate Lien on the acquired property or assets, in which case the Collateral Agent shall subordinate its ~~Guaranty. (f) Borrower agrees that upon~~ Lien on such acquired property or assets in a manner acceptable to the ~~occurrence and during~~ holder of the ~~continuance~~ purchase-money Lien without the need for the consent of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any PersonLender), in ~~whole~~ which case such release shall not require the consent of any of the Lenders or in of any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by holder of a ~~Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described~~ participation interest in the ~~last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~Commitments.

Appears in 2 contracts

Sources: Revolving Loan Agreement (Viasat Inc), Revolving Loan Agreement (Viasat Inc)

Binding Effect; Assignment. (a) This Agreement and ~~the other Loan Documents to which Borrower is a Party will~~ any Margin Loans made hereunder shall be binding upon and shall inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties and their respective successors and permitted assigns~~, except that Borrower may~~ . The rights and obligations of the parties under this Agreement and under any Margin Loan made hereunder shall not ~~assign its rights hereunder or thereunder or any interest herein or therein~~ be assigned by either party without the prior written consent of ~~all~~ the ~~Lenders. Each Lender represents that it is not acquiring its Note with a view to~~ other party, and any such assignment without the ~~distribution thereof within the meaning~~ prior written consent of the ~~Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must~~ other party shall be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgenull and void. (b) ~~From~~ Notwithstanding the foregoing, the Bank may at any time ~~to time following the Closing Date, each Lender may~~ assign to one or more ~~Eligible Assignees~~ banks or other financial institutions (each, an “Assignee”) all or any pro rata portion of its rights and obligations under this Agreement ~~(including all or a portion of its Commitment~~and any Margin Loan, and any such Assignee shall assume such rights and obligations, pursuant to an Assignment and Assumption Agreement in the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be form approved by the ~~Administrative Agent~~ Bank and ~~Borrower~~ executed by such Assignee and the Bank, with (~~neither~~ and subject to) the subscribed consent of the Borrower, which ~~approvals~~ shall not be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) if any such ~~Lender’s obligations under this Agreement~~ Assignee is an Affiliate of the Bank, no consent shall ~~remain unchanged~~be required so long as such Assignee is a United States person (as defined in Section 7701(a)(30) of the Code), (ii) if any Event of Default under this Agreement has occurred and is continuing, no consent of the Borrower to such ~~Lender~~ assignment shall ~~remain solely responsible to the other parties hereto for the performance of such obligations,~~ be required and (iii) such Assignment and Assumption shall be delivered to the ~~participating banks or other financial institutions~~ Borrower for recording in the Register. (c) The Borrower shall ~~not be~~ maintain a ~~Lender hereunder for any purpose except, if the participation agreement so provides,~~ copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Bank, and the commitment amounts of, and principal amounts of Margin Loans (and related interest) owing to, each Bank pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower and the Bank shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Bank and the owner of the amounts owing to it under the Margin Loan Documents as reflected in the Register for all purposes of ~~Sections 3.5~~the Margin Loan Documents, ~~3.6, 11.11 and 11.21 but only~~ notwithstanding notice to the ~~extent~~ contrary. The Register shall be available for inspection by the Bank at any reasonable time and from time to time upon reasonable prior notice. (d) The Bank (including its successors and permitted assigns) may, without regard to the foregoing restrictions on assignment contained in this Section 8.06, assign all or any pro rata portion of its rights under this Agreement to a U.S. Federal Reserve Bank, provided that no such assignment shall release the ~~cost~~ Bank from any of ~~such benefits~~ its obligations hereunder. (e) The Bank may at any time, without the consent of, or notice to the Borrower, sell participations to any Person (other than the Borrower ~~does not exceed the cost which Borrower would have incurred~~ or any of its Affiliates) in ~~respect~~ all or a portion of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such LenderBank’s rights and obligations under this Agreement; provided that no such sale of a participation shall release the Bank from any of its obligations hereunder. If the Bank sells a participation, it 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 (vand stated interest) of each participant’s interest in the ~~participation~~ Margin Loans or other obligations under this Agreement (the “Participant Register”); provided further that the Bank shall have no 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, Margin Loans or its other obligations under any Margin Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, Margin Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations, or is otherwise required thereunder. The entries in the Participant Register shall be ~~expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists~~ conclusive absent manifest error, and ~~shall not restrict an increase~~ each Person whose name is recorded in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long~~ Participant Register shall be treated as the ~~amount of the participation interest is not affected thereby and (vi) the consent of the holder~~ owner of such participation ~~interest shall not be required~~ for ~~amendments or waivers~~ all purposes of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement ~~and the Loan Documents, to any Person, in whole or in any part thereof,~~ notwithstanding any ~~provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document~~ notice to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Master Margin Loan Agreement (Highland Funds Ii), Master Margin Loan Agreement (Highland Funds Ii)

Binding Effect; Assignment. ~~(a)~~ 11.10.1 This ~~Agreement~~ Agreement, the Note and the other Loan Documents ~~to which Borrower is a Party will~~ shall be binding upon and shall inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties hereto and thereto and their respective successors and assigns, except that neither Borrower nor Guarantor may ~~not~~ assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of ~~all the Lenders~~each Lender. Each Lender ~~represents~~ shall (i) have the right in accordance with this Section 11.10 to sell and assign to any Eligible Assignee all or any portion of its interest (provided that ~~it is~~ any such partial assignment shall not ~~acquiring its~~ be for a principal amount of less than Five Million Dollars ($5,000,000)) under this Agreement, the Note ~~with a view~~ and the other Loan Documents (as separately described and defined in those agreements), subject to the ~~distribution thereof within~~ prior written consent of Borrower, which consent shall not be unreasonably withheld, and (ii) to grant any participation or other interest herein or therein, except that each potential participant to which a Lender intends to grant any rights under Sections 2.9, 2.10, 5.1 or 10.2 shall be subject to the ~~meaning~~ prior written consent of Borrower, which consent shall not be unreasonably withheld; provided, however, that no such sale, assignment or participation grant shall result in requiring registration under the Securities Act of 1933, as ~~amended (subject to~~ amended, or qualification under any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgestate securities law. ~~(b) From time~~ 11.10.2 Subject to ~~time following~~ the ~~Closing Date~~limitations of this Section 11.10.2, each Lender may ~~assign~~ sell and assign, from time to ~~one or more Eligible Assignees~~ time, all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of the Commitments to any of its ~~Commitment~~Affiliates or, with the ~~Advances owing~~ approval of Borrower (which approval shall not be unreasonably withheld), to ~~it and the Note or Notes held by it); provided that~~any other financial institution acceptable to Agent, subject to ~~subsection (f) below, (i)~~ the assumption by such ~~Eligible Assignee, if not then a Lender or an Affiliate~~ assignee of the ~~assigning Lender, shall be approved by~~ share of the ~~Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld~~ Commitments so assigned. The assignment to such Affiliate or ~~delayed), (ii) such assignment~~ other financial institution shall be evidenced by an instrument of Assignment and Assumption in the form of Exhibit G (the "Assignment and Acceptance") executed by the assignor Lender (hereinafter from time to time referred to as the "Assignor Lender") and such Affiliate or other financial institution (which, upon such assignment shall become a ~~copy~~ Lender hereunder (hereinafter from time to time referred to as the "Assignee Lender")). The Assignment and Assumption need not include any of the economic or financial terms upon which such Assignee Lender receives the assignment from the Assignor Lender, and such terms need not be disclosed to or approved by Borrower; provided only that such terms do not diminish the obligations undertaken by such Assignee Lender in the Assignment and Assumption or increase the obligations of Borrower under this Agreement. Upon execution of an Assignment and Assumption, (i) the definition of "Commitments" in Section 1 hereof and the Pro Rata Shares set forth therein shall be ~~furnished~~ deemed to be amended to reflect each Lender's share of the Commitments, giving effect to the ~~Administrative Agent~~ assignment and (ii) the Assignee Lender shall, from the effective date of the Assignment and Assumption, be subject to all of the obligations, and entitled to all of the rights, of a Lender hereunder, except as ~~hereinbelow provided, (iii) except~~ may be expressly provided to the contrary in the ~~case of an assignment to an Affiliate~~ Assignment and Assumption. To the extent the obligations hereunder of the ~~assigning~~ Assignor Lender are assumed by the Assignee Lender, the Assignor Lender shall be relieved of such obligations. Upon the assignment of any interest by any Assignor Lender pursuant to ~~another~~ this Section 11.10.2, such Assignor Lender or agrees to supplement Schedule 1.1 to show the date of such assignment, the Assignor Lender, the Assignee Lender, the Assignee Lender's address for notice purposes and the amount of the ~~entire remaining rights and obligations~~ Commitments so assigned. 11.10.3 Subject to the limitations of this Section 11.10.3, any Lender may also grant, from time to time, participation interests in the ~~assigning~~ interests of such Lender under this Agreement, the ~~assignment shall not assign a portion~~ Note and the other Loan Documents to any other financial institution without notice to, or approval of, Borrower. The grant of such ~~assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment~~ a participation interest shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the ~~holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof~~granting Lender determines are appropriate, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, only that (i) the holder of such ~~Lender’s obligations~~ participation interest shall not have any of the rights of a Lender under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so expressly provides, ~~for the purposes of~~ rights under Sections ~~3.5~~2.9, ~~3.6~~2.10, ~~11.11~~ 5.1 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation10.2, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (viii) the consent of the holder of such a participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other ~~than~~ than, if the participation agreement expressly provides, those which (A) ~~extend~~ increase the monetary amount of any ~~Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders~~Commitment, (B) ~~reduce the rate of interest on the Notes,~~ decrease any fee or any other monetary amount payable to ~~the~~ Lenders, or (C) ~~reduce~~ extend the date upon which any monetary amount ~~of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty~~is payable to Lenders. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Warehousing Credit Agreement (American Finance Group Inc /De/), Warehousing Credit Agreement (PLM International Inc)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party~~ will be binding upon and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ Parties and their respective successors and permitted assigns. Nothing in this Agreement will create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement. No assignment of this Agreement or of any rights or obligations hereunder may be made by any Party, ~~except that Borrower may not assign its rights hereunder~~ directly or ~~thereunder~~ indirectly (by operation of Law or ~~any interest herein or therein~~ otherwise), without the prior written consent of ~~all~~ the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, Party and any ~~request~~attempted assignment without the required consents will be void, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (ia) the Debtors may assign some or all of their rights or delegate some or all of their obligations hereunder to successor entities (including one or more reorganized Debtors) pursuant to a plan of reorganization confirmed by the Bankruptcy Court, provided that any such ~~Lender’s~~ entity must provide to Purchaser evidence of adequate assurance of future performance as if this Agreement was being assumed and assigned to such entity or entities pursuant to section 365 of the Bankruptcy Code and (b) Purchaser may assign some or all of its rights or delegate some or all of its obligations hereunder to one or more of its Affiliates. No assignment will relieve the assigning Party of any obligation. Upon any permitted assignment, the references in this Agreement to the assigning Party will also apply to any such assignee unless the context otherwise requires. In addition to the foregoing, any entity that constitutes a Debtor Successor (as defined in clause (x) of paragraph 49 of the Sale Order attached hereto), must (x) assume all of the Debtors’ obligations hereunder (and the other Transaction Documents) and (y) prior to the consummation of such transactions and assumption, provide to Purchaser evidence of adequate assurance of future performance as if this Agreement was being assumed and assigned to such entity or entities pursuant to section 365 of the Bankruptcy Code. Any such assumption will not relieve the Debtors of their respective obligations under this Agreement ~~shall remain unchanged, (ii) such Lender shall remain solely responsible to~~ or the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its GuarantyTransaction Documents. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Nii Holdings Inc)

Binding Effect; Assignment. ~~(a) This~~ The rights and obligations of this Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding ~~upon~~ on and ~~inure to~~ enforceable by the ~~benefit of Borrower, the Administrative Agent, each of the Lenders,~~ parties hereto and their respective successors and permitted assigns. Except as expressly provided herein, ~~except that Borrower~~ the rights and obligations of this Agreement may not ~~assign its rights hereunder~~ be assigned by Purchaser or ~~thereunder or any interest herein or therein~~ Seller without the express prior written consent of ~~all~~ the ~~Lenders. Each Lender represents~~ other party; provided, that ~~it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended~~ (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (ba) ~~From time to time following the Closing Date, each Lender~~ Purchaser may assign ~~to one~~ any or ~~more Eligible Assignees~~ all ~~or any portion~~ of its rights and obligations hereunder to one or more of its Affiliates and (b) Purchaser may assign any or all of its rights and obligations to any Debt Financing Source as collateral in connection with the Debt Financing and any such Debt Financing Source may exercise all of the rights and remedies of Purchaser hereunder solely to the extent necessary to enforce its security interest in such rights and obligations granted by Purchaser to such Debt Financing Source as collateral, in each case, without prior written consent of Seller. Nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon Person other than the parties hereto and their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement (including ~~all or a portion of its Commitment~~Section 10.14) and other than Article IX, ~~the Advances owing to it~~ Section 10.3, this Section 10.5, Section 10.7, Section 10.8, Section 10.10 and ~~the Note or Notes held by it); provided that~~Section 10.14, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be ~~furnished~~ for the benefit of the Debt Financing Sources and their respective current, former or future directors, officers, general or limited partners, stockholders, members, managers, controlling persons, affiliates, employees, consultants, agents, financial advisors, attorneys, accountants or other representatives (it being understood that such provisions and related definitions may not be amended in a manner adverse to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment Debt Financing Sources without their prior written consent). Seller shall ~~not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ ensure that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) 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, including Article VII, Article VIII and Section 2.8, are assumed either expressly or by operation of Law, by a surviving or acquiring person in connection with (vx) ~~the participation interest shall be expressed as~~ a ~~percentage~~ sale or transfer of all or substantially all of the ~~granting Lender’s Pro Rata Share~~ assets of Seller or (y) a merger, consolidation or other transaction which results in any Person or “group” (within the meaning of Section 13(d)(3) of the ~~Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (~~Exchange Act) acquiring beneficial ownership, directly or ~~the aggregate Commitments pertaining thereto)~~indirectly, ~~or in the granting Lender’s rights and obligations hereunder, so long as the amount~~ of a majority of the ~~participation interest is not affected thereby~~ then issued and ~~(vi) the consent~~ outstanding capital stock of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its GuarantySeller. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Stock Purchase Agreement (Amaya Inc.), Stock Purchase Agreement (AP Gaming Holdco, Inc.)

Binding Effect; Assignment. (a) This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon Purchaser and, subject to the terms of the Bidding Procedures Order and the Canadian Bidding Procedures Recognition Order (in each case, with respect to the matters covered thereby) and the entry and terms of the Sale Order and the Canadian Sale Recognition Order, Sellers, and shall inure to the benefit of ~~Borrower,~~ and be so binding on the ~~Administrative Agent, each of the Lenders,~~ Parties and their respective successors and permitted assigns, ~~except that Borrower may not assign its rights hereunder~~ including any trustee or ~~thereunder~~ estate representative appointed in the Bankruptcy Cases or any ~~interest herein~~ successor Chapter 7 cases or ~~therein~~ any trustee, receiver, or monitor appointed in any Canadian bankruptcy, proposal, receivership or CCAA proceedings in respect of any Seller, including within the Canadian Recognition Proceedings; provided that, subject to Section 10.4(b), neither this Agreement nor any of the rights or obligations hereunder may be assigned or delegated without the prior written consent of ~~all the Lenders. Each Lender represents~~ Purchaser and Yellow, and any attempted assignment or delegation without such prior written consent shall be null and void; provided further that ~~it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended~~ Purchaser (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from Purchaser remaining liable for its obligations hereunder in the event such obligations are not performed in accordance with their terms) may assign any of its rights or ~~grant~~ obligations hereunder to ~~such Federal Reserve Bank~~ any of its Affiliates without the ~~rights~~ consent of ~~a Lender hereunder absent foreclosure of such pledge~~any Person. (b) ~~From time to~~ At any time following entry of the Sale Order and prior to the Closing, Purchaser shall be entitled to designate, by written notice to Sellers, one or more Affiliates to (i) purchase the Acquired Assets and pay the corresponding Purchase Price amount or (ii) assume the Assumed Liabilities (any such Affiliates that shall be designated in accordance with this clause, a “Designated Purchaser”). In addition, and for the avoidance of doubt, a Designated Purchaser shall be entitled to perform any other covenants or agreements of Purchaser under this Agreement. Further notwithstanding anything in this Agreement to the contrary, Purchaser in its sole discretion may, by written notice delivered to Sellers no later than five (5) business days prior to the Closing Date, ~~each Lender may assign~~ designate a Designated Purchaser to ~~one or more Eligible Assignees all or~~ take title to any ~~portion of its rights and obligations under~~ Acquired Real Property. Subject to this paragraph, this Agreement ~~(including all or a portion of its Commitment, the Advances owing to it~~ and the ~~Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender,~~ provisions hereof shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion binding upon each of such ~~assigning Lender’s Commitments and/or Advances owing~~ parties, their successors and permitted assigns and Purchaser shall remain primarily liable until the transfer to any such ~~assigning Lender that is equivalent to less than $3,000,000,~~ Designated Purchaser and ~~(iv)~~ the ~~effective date~~ satisfaction by such Designated Purchaser of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further related obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderor other Liabilities hereunder. (c) ~~By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder~~ Purchaser acknowledges and agrees ~~that: (i) other than~~ to comply with the ~~representation and warranty that it is the legal and beneficial owner~~ anti-collusion requirements of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders Bidding Procedures Order and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityBankruptcy Code. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Asset Purchase Agreement (Yellow Corp), Asset Purchase Agreement (Saia Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which ~~Borrower is~~ the Loan Parties are a ~~Party~~ party are and will be binding upon and inure to the benefit of ~~Borrower~~the Loan Parties, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that ~~Borrower~~ the Loan Parties may not assign ~~its~~ their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders, and any purported assignment without such consent shall be null and void. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its ~~Note~~ Notes or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion of its~~ Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall ~~be approved~~ require approval by the Administrative Agent and ~~Borrower~~ (if no Event of Default then exists) Parent (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of ~~which~~ which, together with any Notes subject to such assignment, shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitments of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ share of ~~such assigning Lender’s~~ the Commitments ~~and/or Advances owing to such assigning Lender~~ that is equivalent to less than $~~3,000,000~~10,000,000, (iv) the assignment shall be of a constant, and not a varying, percentage of the Assignor’s rights and obligations under this Agreement, and (ivv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and ~~Acceptance~~Acceptance unless otherwise agreed by the Administrative Agent. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with ~~the Commitments and/or Advances~~ a Percentage and Commitment as therein (and herein, if such Eligible Assignee was already a Lender) set forth and, to the extent of ~~such~~ the portion of the Commitments ~~and/or Advances~~assigned, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver ~~(against delivery by the assigning Lender to Borrower of such Lender’s Notes)~~ to such assignee Lender, Notes evidencing that assignee Lender’s ~~Commitments and/or Advances~~Commitment, and to the assigning Lender, Notes evidencing the remaining balance of ~~the Commitments and/or Advances retained by the assigning~~ such Lender’s Commitment. (c) By executing and delivering an a Commitments Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) ~~other than~~ the ~~representation~~ Administrative Agent and ~~warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim,~~ the assigning Lender has not made no any 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 or sufficiency of this Agreement or any other Loan Document; (ii) the ~~assigning~~ Administrative Agent and the Assigning Lender has not made no any representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ the Loan Parties or the performance by ~~Borrower~~ the Loan Parties of the Obligations; (iii) it has received a copy of this ~~Agreement~~Agreement and the other Loan Documents, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitments Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the ~~Pro Rata Share of the Commitments~~ Percentage and Commitment amounts held by each Lender, giving effect to each Commitment Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender and an Eligible ~~Assignee~~Assignee and the Notes subject to such assignment, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, upon the request of any party, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the ~~Pro Rata Shares of the Revolving Facility~~ Commitments listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Commitment shall be effective, in each case unless and until an a Commitment Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable ~~Pro Rata Share of the Revolving Facility~~ Commitments shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of ~~the corresponding Pro Rata Share of the Revolving Facility~~such Commitments. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (including another Lender but excluding an Employee Plan) in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Commitments; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.7, ~~3.6~~3.8, 11.11 and ~~11.21~~ 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred ~~in respect of the Lender granting such participation~~ absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s ~~Pro Rata Share of the Revolving Facility~~ Commitment as it they then ~~exists~~ exist and shall not ~~restrict an increase in the Revolving Facility (~~afford such participant any rights or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of privileges under the Loan Documents ~~other than those which~~ except as provided in clause (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (biii) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Unsecured Credit Agreement (BioMed Realty L P), Unsecured Credit Agreement (BioMed Realty Trust Inc)

Binding Effect; Assignment. ~~(a)~~ 12.8.1 This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the Administrative~~ Agent, each of ~~the~~ Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the~~ Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a ~~Lender~~ lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that ~~Lender~~ lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. ~~(b)~~ 12.8.2 From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its~~ the Revolving Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by ~~the Administrative~~ Agent ~~and Borrower (neither~~ and, provided no Default or Event of Default then exists, Borrower, which ~~approvals~~ approval(s) shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed), ; (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to ~~the Administrative~~ Agent as hereinbelow provided, ; (iii) except in the case of an assignment (a) to an Affiliate of the assigning ~~Lender,~~ Lender or to another Lender or (b) of the entire remaining ~~rights and obligations~~ Revolving Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ the Revolving Commitment that is equivalent to less than $~~3,000,000, and~~ 5,000,000.00; (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) ~~Banking~~ Business Days after the date ~~the Administrative~~ Agent has received the Commitment Assignment and Acceptance; and (v) such Eligible Assignee shall execute an Alternative Dispute Resolution Agreement, in form and substance satisfactory to Agent. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share of the Revolving Commitment therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~its Revolving Note(s)) to such assignee Lender, ~~Notes~~ Revolving Note(s) evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share of the Revolving Commitment, and to the assigning Lender, ~~Notes~~ Revolving Note(s) evidencing the ~~remaining balance of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Loan and Security Agreement (Aerocentury Corp), Loan and Security Agreement (Aerocentury Corp)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, the ~~Administrative~~ Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its ~~Note~~ Advances and other Obligations hereunder with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it~~ respective Commitments and the ~~Note or Notes held by it)~~Loans; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the ~~Administrative~~ Agent and the Issuing Lender and (if no Event of Default pursuant to Section 9.1(a), (b) or (j) then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed); provided that (x) Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Agent within 10 Banking Days after having received notice thereof and (y) approval of the Issuing Lender shall not be required in connection with the assignment of any New Term Loans, (ii) no such assignment shall be made to (A) Borrower or any of Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), (iii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the ~~Administrative~~ Agent as ~~hereinbelow~~ herein below provided, (~~iii~~iv) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitments and/or Loans of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a any portion of ~~such assigning Lender’s Commitments~~ any Commitment and/or ~~Advances owing to such assigning Lender~~ Loans that is equivalent to less than $~~3,000,000~~5,000,000 (or, in the case of any New Term Loans, such other minimum amount as may be set forth in the applicable New Term Facility Supplement; provided that such minimum amount shall not be less than $1,000,000) and (ivv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the ~~Administrative~~ Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments and/or ~~Advances~~ Loans therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Borrower agrees ~~that~~ that, to the extent requested by any such Lender, it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s~~ its Notes) to such assignee Lender, Notes evidencing that assignee Lender’s respective Commitments and/or ~~Advances~~Loans, and to the assigning Lender, Notes evidencing the remaining balance of ~~the~~ its respective Commitments and/or ~~Advances retained~~ Loans. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the ~~assigning~~ assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and the Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent, the Issuing Lender, the Swing Line Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Commitments and/or Loans being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the ~~Administrative~~ 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; (v) it appoints and authorizes the ~~Administrative~~ Agent to take such action and to exercise such powers under this Agreement as are delegated to the ~~Administrative~~ Agent by this Agreement; ~~and~~ (vi) 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 (vii) it is not a Disqualified Institution. (d) The ~~Administrative~~ Agent shall maintain at the ~~Administrative~~ Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments and/or the principal amounts (and stated interest) of the Loans held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the ~~Administrative~~ Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the ~~Administrative~~ Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the ~~Administrative~~ Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the ~~Pro Rata Shares of the Revolving Facility~~ Commitments and/or Loans listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Commitments and/or Loans shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the ~~Administrative~~ Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the ~~applicable Pro Rata Share of the Revolving Facility~~ Commitments and/or Loans shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding ~~Pro Rata Share of the Revolving Facility~~Commitments and/or Loans. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (other than a Disqualified Institution, a Defaulting Lender or Borrower or any of Borrower’s Affiliates or Subsidiaries) in ~~or to all or~~ a portion of ~~its rights~~ the Commitments and/or ~~obligations under this Agreement~~Loans; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.6, ~~3.6~~3.7, 3.11, 11.11 and ~~11.21~~ 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, (iv) Borrower, the ~~Administrative~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s ~~Pro Rata Share of the Revolving Facility~~ Commitments and/or Loans as it then exists and shall not restrict an increase in the ~~Revolving Facility (or the aggregate~~ Commitments ~~pertaining thereto)~~and/or Loans, or in the granting Lender’s ~~rights and obligations hereunder~~Commitments and/or Loans, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, (vi) the holder of the participation interest shall abide by the confidentiality provisions set forth herein and (vivii) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (Aa) extend ~~any Amortization Date, any~~ the applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (Bb) reduce the rate of interest on the ~~Notes~~Loan, any fee or any other monetary amount payable to the Lenders, (Cc) reduce the amount of any installment of principal due ~~under~~ with respect to the ~~Notes~~Loan, (d) release any Subsidiary Guaranty, or (De) release all or substantially all of the Collateral from the Lien of the Collateral Documents, except if such release of Collateral occurs in connection with a Disposition permitted under Section 6.2 or grant of a purchase-money Lien of the type permitted by Section 6.9(g) (unless the holder of such Lien does not prohibit a subordinate Lien on the acquired property or assets, in which case the Agent shall subordinate its Lien on such acquired property or assets in a manner acceptable to the holder of the purchase-money Lien without the need for the consent of any ~~Guarantor from~~ Lender), in which case such release shall not require the consent of any of the Lenders or of any holder of a participation interest in the Commitments and/or Loans. In the event that a participation has been granted pursuant to this Section 11.8(e) to a financial institution that is not a U.S. Person, then, upon request made by Borrower or the Agent to the Lender which granted such participation, such Lender shall cause such participant financial institution to deliver the same documents and information to Borrower and the Agent as would be required under Section 3.11(g) if such financial institution were a Lender. Each Lender that grants a participation shall, acting solely for this purpose as a non-fiduciary agent of 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 Loan 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 ~~Guaranty~~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. (fi) ~~Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender~~ No assignment or participation shall be ~~entitled~~ made to any Person that was a Disqualified Institution as of the date (the “Trade Date”) on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights ~~hereunder~~ and ~~under the Loan Documents, or grant participation interests in its rights~~ obligations under this Agreement to such Person (unless the Borrower has consented to such assignment in its sole and absolute discretion, in which case such Person will not be considered a Disqualified Institution for the ~~Loan Documents~~purpose of such assignment or participation); provided, however, that during the continuation of Event of Default under Section 9.1(a), 9.1(b) or 9.1(j), no consent of Borrower shall be required to make an assignment or participation to a Disqualified Institution. For the avoidance of doubt, with respect to any ~~Person, in whole or in any part thereof, notwithstanding any provisions contained herein~~ assignee that becomes a Disqualified Institution after the applicable Trade Date (including ~~those set forth~~ as a result of the delivery of a notice pursuant to, and/or the expiration of the notice period referred to in, the definition of “Disqualified Institution”), (x) such assignee shall not retroactively be disqualified from becoming a Lender and (y) the execution by Borrower of an Assignment and Assumption with respect to such assignee will not by itself result in ~~subsection~~ such assignee no longer being considered a Disqualified Institution (~~b) above~~provided that no additional assignment or participation shall be made to any Person that becomes a Disqualified Institution unless an Event of Default under Section 9.1(a), 9.1(b) or 9.1(j) has occurred and is continuing). Any assignment in violation of this clause (f)(i) shall not be void, but the other provisions of this clause (f) shall apply. (ii) If any ~~other Loan Document~~ assignment or participation is made to ~~the contrary, except that, other than~~ any Disqualified Institution without Borrower’s prior consent in violation of clause (i) ~~assignments by~~ above, or if any Person becomes a ~~Lender~~ Disqualified Institution after the applicable Trade Date, Borrower may, at its sole expense and effort, upon notice to ~~an Affiliate~~ the applicable Disqualified Institution and the Agent, (A) terminate any Revolving Commitment of such ~~Lender or~~ Disqualified Institution and repay all obligations of Borrower owing to ~~another Lender or~~ such Disqualified Institution in connection with such Revolving Commitment, (iiB) ~~pledges described~~ in the ~~last sentence~~ case of ~~subsection~~ any outstanding Term Loan held by Disqualified Institutions, purchase or prepay such Term Loan by paying the lesser of (ax) ~~above~~the principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such Term Loan in each case plus accrued interest, ~~no assignment shall be made~~ accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (C) require such Disqualified Institution to assign, without recourse (in accordance with and subject to the ~~approval~~ restrictions contained in this Section 11.8), all of its interest, rights and obligations under this Agreement to one or more Eligible Assignees at the ~~Administrative Agent.~~lesser of (x) the principal amount thereof and (y) the amount that such Disqualified I

Appears in 2 contracts

Sources: Credit Agreement (Viasat Inc), Credit Agreement (Viasat Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the ~~Administrative Agent, each of the Lenders~~Creditors, and their respective successors and assigns, except that except as permitted in Section 6.3, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge or grant a security interest in its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve ~~Bank~~Bank or a trustee, collateral agent or other representative of such Lender for the benefit of such Lender's creditors, but no such pledge or grant of a security interest shall release that Lender from its obligations hereunder or grant to such Federal Reserve ~~Bank~~ Bank, trustee, collateral agent or other representative the rights of a Lender hereunder absent foreclosure of such ~~pledge~~pledge or security interest. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights~~ Pro Rata Share and ~~obligations under this Agreement (including all or a portion of~~ its ~~Commitment, the Advances owing to it and the Note or Notes held by it)~~Note; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate or Related Fund of the assigning ~~Lender~~Lender having a combined capital and surplus in excess of $100,000,000, shall be approved by each of the Administrative Agent (which approval shall not be unreasonably withheld) and Borrower (~~neither of~~ which ~~approvals~~ approval shall not be unreasonably withheld ~~or delayed~~and which will not be required if an Event of Default has occurred and remains continuing), (ii) such assignment shall be evidenced by an Assignment ~~and Acceptance~~Agreement, a copy of which shall be furnished to the Administrative ~~Agent as hereinbelow provided~~Agent, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that~~ Pro Rata Share which is ~~equivalent to~~ less than $~~3,000,000~~1,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment ~~and Acceptance~~Agreement, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date the Administrative Agent has received the Assignment ~~and Acceptance~~Agreement. Upon the effective date of such Assignment ~~and Acceptance~~Agreement, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this ~~Agreement~~Agreement and the other Loan Documents. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~its Note) to such assignee Lender, ~~Notes~~ a Note evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share, and to the assigning Lender, ~~Notes~~ a Note evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an Assignment ~~and Acceptance~~Agreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or its Subsidiaries or the performance by Borrower or its Subsidiaries of the Obligations; (iii) it has received a copy of this ~~Agreement~~Agreement and the other Loan Documents, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment ~~and Acceptance~~Agreement; (iv) it will, independently and without reliance upon ~~the Administrative Agent or~~ any ~~Lender~~ other Creditor 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) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement and the Loan Documents as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain ~~at the Administrative Agent’s Office~~ a copy of each Assignment ~~and Acceptance~~ Agreement delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agentit. After receipt of a completed Assignment ~~and Acceptance~~ Agreement executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such ~~Lender or~~ Eligible Assignee, the Administrative Agent ~~shall,~~ shall promptly ~~following~~ notify the ~~effective date thereof, provide to~~ Borrower and each affected Lender of the ~~Lenders a revised Schedule 1.1 giving effect thereto. Borrower~~effectiveness of such assignment; provided, that no assignment fee shall be payable with respect to an assignment to another Lender or an Affiliate of such assigning Lender or if the Administrative Agent waives payment of such assignment fee and ~~the Lenders shall deem and treat the Persons listed as Lenders~~ further provided, that only one assignment fee will be payable in ~~the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment~~ connection with simultaneous assignments by or ~~transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment~~ to two or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facilitymore Related Funds. (e) Each Lender may from time to time grant participations in a portion of its Pro Rata Share (with the consent of Borrower which consent shall not be unreasonably withheld), in each case to one or more banks or other financial institutions ~~in or to all or a portion of its rights and/or obligations under this Agreement~~(including another Lender); provided, however, that (i) such Lender’s 's obligations under ~~this Agreement~~ the Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.7, ~~3.6~~3.8, 11.11 and ~~11.21~~ 11.23 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, (iv) ~~Borrower, the Administrative Agent~~ Borrower and the other ~~Lenders~~ Creditors shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall ~~be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall~~ not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~Commitment, or in the granting Lender~~’s rights and obligations hereunder~~'s Pro Rata Share, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents affecting the relevant Lender other than those which (A) extend ~~any Amortization Date, any applicable~~ the Maturity Date or any other date upon which any payment of money is due to ~~the Lenders~~that Lender, (B) reduce the rate of interest on ~~the Notes,~~ that Lender's Note or any fee or any other monetary amount payable to ~~the Lenders~~that Lender, or (C) reduce the amount of any installment of principal due under ~~the Notes, or (D) release any Guarantor from its Guaranty~~that Lender's Note. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests Notwithstanding anything in ~~its rights under~~ this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Section to the contrary, ~~except that~~the rights of the Lenders to make assignment of, ~~other than~~ and grant participations in, their Pro Rata Share shall be subject to the approval of any Gaming Board, to the extent required by applicable Gaming Laws. (g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to one or more special purpose funding vehicles (each, an "SPC") of such Granting Lender, identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to Article 2, provided that (i) ~~assignments~~ nothing herein shall constitute a commitment to make any Loan by any SPC 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 Commitment of the Granting Lender to ~~an Affiliate~~ the same extent, and as if, such Loan were made by the 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 related 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 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 or similar proceedings under the laws of the United States or any State thereof, provided that the Granting Lender for each SPC hereby agrees to indemnify, save, and hold harmless each other party hereto for any loss, cost, damage and expense arising out of their inability to institute any such proceeding against its SPC. In addition, notwithstanding anything to the contrary contained in this Section 11.8, any SPC may (i) 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 Loans to its Granting Lender or to ~~another~~ any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans (but nothing contained herein shall be construed in derogation of the obligation of the Granting Lender to make Loans hereunder), provided that neither the consent of the SPC or of any such assignee shall be required for amendments or waivers of provisions of the Loan Documents except for those amendments or waivers for which the consent of participants is required under Section 11.8(e)(vi), and (ii) ~~pledges~~ disclose on a confidential basis (in the same manner described in ~~the last sentence~~ Section 11.14) any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of ~~subsection (a) above~~a surety, ~~no assignment shall be made without the approval of the Administrative Agent~~guarantee or credit or liquidity enhancement to such SPC.

Appears in 2 contracts

Sources: Capital Markets Term Loan Agreement (Mandalay Resort Group), Term Loan Agreement (Mandalay Resort Group)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower~~ is a ~~Party will~~ continuing obligation and shall (i) be binding upon the Company and its permitted successors and assigns and (ii) inure to the benefit of ~~Borrower~~and be enforceable by TDF and its successors, ~~the Administrative Agent, each of the Lenders, and their respective successors~~ transferees and assigns~~, except~~ ; provided that ~~Borrower~~ the Company may not assign ~~its rights hereunder or thereunder~~ all or any ~~interest herein or therein~~ part of this Agreement without the prior written consent of TDF. Any permitted assignment of this Agreement by the Company shall be conditioned upon the assignee executing and delivering to TDF, Issuer and the Trustee a certificate which shall be in a form reasonably satisfactory to TDF, Issuer and the Trustee, pursuant to which the assignee shall expressly assume, and agree to pay and to perform, all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning~~ of the ~~Securities Act~~ obligations of ~~1933, as amended (subject to any requirement that disposition of such Note must be within~~ the ~~control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender~~ Company under this ~~Agreement to a Federal Reserve Bank~~Agreement. TDF may assign, ~~but no such~~ negotiate, pledge ~~shall release that Lender from its obligations hereunder~~ or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees otherwise hypothecate all or any portion of ~~its~~ this Agreement, or grant participations herein, in the Letter of Credit, and in TDF's other rights ~~and obligations under this Agreement (including all~~ or ~~a portion of its Commitment~~security hereunder, including, without limitation, the ~~Advances owing to it and~~ instruments securing the ~~Note~~ Company's obligations hereunder or ~~Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of~~ under any Operative Document. In the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case event of an assignment ~~to an Affiliate~~ of ~~the assigning Lender~~all, ~~to another Lender or~~ of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the TDF's rights and obligations hereunder ~~being assigned thereby free~~ and ~~clear~~ under the Letter of ~~any adverse claim~~Credit, the ~~assigning Lender has made 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~~ Company shall at the ~~execution, legality, validity, enforceability, genuineness or sufficiency~~ request of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on TDF execute such documents as shall be necessary or convenient to evidence such assignment, the substitution of TDF by the assignee, and ~~information as it shall deem appropriate at~~ the ~~time~~release of TDF of its obligations hereunder; provided that such assignment may not impose additional material obligations on the Company without the Company's previous written consent. No such assignment or participations by TDF, ~~continue~~ however, will relieve TDF of its obligations under the Letter of Credit unless consented to ~~make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes~~ by the ~~Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform~~ Trustee in accordance with ~~their terms all of~~ the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment Trust Agreement. All documentation, financial statements, appraisals, and ~~Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender~~other data, ~~giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower~~ or ~~any Lender upon reasonable prior notice~~ copies thereof, relevant to the ~~Administrative Agent. After receipt of a completed Assignment~~ Company, may be reviewed and ~~Acceptance executed~~ retained by any ~~Lender and an Eligible Assignee~~such assignee, ~~and receipt of an assignment fee of $3,500 from such Lender~~ prospective assignee, participant or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, prospective participant so long as ~~the amount of the participation interest is~~ such entities agree to retain such documentation, statements and appraisals confidential and not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due release them to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantypublic. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Letter of Credit and Reimbursement Agreement (Maxxam Inc), Letter of Credit and Reimbursement Agreement (Maxxam Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its Commitment,~~ the ~~Advances owing to it and the Note or Notes held by it)~~Commitments; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and (if no Event of Default then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitments of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s~~ the Commitments ~~and/or Advances owing to such assigning Lender~~ that is equivalent to less than $~~3,000,000,~~ 5,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments ~~and/or Advances~~ therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s~~ its Notes) to such assignee Lender, Notes evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share of the Commitments, and to the assigning Lender, Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Revolving/Term Loan Agreement (Viasat Inc), Revolving/Term Loan Agreement (Safeskin Corp)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the~~ Administrative Agent, ~~each of the Lenders,~~ Lenders and their respective successors and assigns, except ~~that~~ that, Borrower may ~~not~~ not, except as permitted by Section 7.03, assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to~~ Lenders and any ~~requirement that disposition of~~ such ~~Note must~~ attempted assignment shall be ~~within the control of such Lender)~~void. Any Lender may at any time pledge ~~its~~ a Note or any other instrument evidencing its rights as a Lender under this Agreement (including to a Federal Reserve ~~Bank~~Bank or other central bank having jurisdiction over such Lender or, if such Lender is a fund, to any trustee or to any other representative of holders of obligations owed or securities issued by such fund as security for such obligations or securities) but no such pledge shall release ~~that~~ such Lender from its obligations hereunder or grant to any such ~~Federal Reserve Bank~~ pledgee the rights of a Lender hereunder absent foreclosure of such pledge, and any transfer to any Person upon the enforcement of such pledge shall be subject to this Section 10.04. (b) From time to time following the ~~Closing Date~~date of this Agreement, each Lender may assign ~~to one or more Eligible Assignees~~ all or any portion of its rights and obligations under this Agreement ~~(including all or a portion of its Commitment, the Advances owing to it~~ and the ~~Note~~ other Loan Documents to one or ~~Notes held by it); provided that~~more Eligible Assignees, ~~subject to subsection (f) below,~~ other than (i) ~~such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent~~ Borrower and ~~Borrower (neither of which approvals shall be unreasonably withheld or delayed),~~ its Subsidiaries and (ii) natural persons; provided that such assignment shall be ~~evidenced by~~ subject to Borrower’s consent (which shall not be unreasonably withheld) at all times other than during the existence of an ~~Assignment~~ Event of Default arising under Section 8.1(a), Section 8.1(b) or Section 8.1(i) and ~~Acceptance~~the consent of Administrative Agent and Issuing Lenders (which consents shall not be unreasonably withheld); provided that the consent of Borrower shall not be required with respect to an assignment to another Lender unless such assignment, would result in the Revolving Commitment of such assignee and its Affiliates exceeding 15% of the aggregate Revolving Commitments, as applicable, then outstanding. No such assignment shall become effective unless and until a copy of ~~which~~ a duly signed and completed Assignment and Assumption shall be ~~furnished~~ delivered to ~~the~~ Administrative ~~Agent as hereinbelow provided, (iii) except~~ Agent. Except in the case of an assignment (A) to ~~an Affiliate~~ another Lender or (B) of the entire remaining Revolving Commitment of the assigning Lender, ~~to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the~~ such assignment shall be in an aggregate principal amount not ~~assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to~~ less than ~~$3,000,000,~~ the Minimum Amount therefor without the consent of Borrower and ~~(iv) the~~ Administrative Agent. The effective date of any ~~such~~ assignment shall be as specified in the Assignment and ~~Acceptance~~Assumption, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Assignment and ~~Acceptance~~Assumption. Upon obtaining any consent required as set forth this paragraph, any forms required by Section 10.20 and payment of the ~~effective date of such Assignment and Acceptance~~requisite fee described below, the ~~Eligible Assignee~~ assignee named therein shall be a Lender for all purposes of this ~~Agreement, with the Commitments and/or Advances therein set forth and,~~ Agreement to the extent of the Assigned Interest (as defined in such ~~Commitments and/or Advances~~Assignment and Assumption), and, except for rights and obligations which by their terms survive termination of any Revolving Commitments, the assigning Lender shall be released from ~~its~~ any further obligations under this ~~Agreement~~Agreement to the extent of such Assigned Interest. Upon request, Borrower ~~agrees that it~~ shall execute and deliver ~~(against delivery by~~ new or replacement Notes to the assigning Lender and the assignee Lender to ~~Borrower of such Lender~~evidence Loans made by them. Administrative Agent’s ~~Notes)~~ consent to ~~such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances,~~ any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. Administrative Agent shall record the information contained in the Assignment and to Assumption in the ~~assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender~~Register. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and ~~Acceptance executed by any Lender and an Eligible Assignee~~Assumption, and receipt of an assignment fee of $3,500 from such assignee and/or such assigning Lender ~~or Eligible Assignee~~(including in the case of assignments to Affiliates of assigning Lenders), ~~the~~ Administrative Agent ~~shall,~~ shall promptly ~~following~~ accept such Assignment and Assumption and record the information contained therein in the Register on the effective date ~~thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect~~ determined pursuant thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (ed) Each Lender may from time to ~~time~~ time, without the consent of any other Person, grant participations to one or more ~~banks or~~ other ~~financial institutions~~ Persons that are Eligible Assignees (including another Lender but excluding (x) Borrower and its Subsidiaries and (y) natural persons) in ~~or to~~ all or a any portion of its ~~rights and/or obligations~~ Loans, Revolving Commitments, Extensions of Credit or any other interest of such Lender hereunder and under ~~this Agreement~~the 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 the performance of such obligations, (iii) the participating ~~banks~~ bank or other financial ~~institutions~~ institution shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6, 11.11~~ the increased cost provisions (including yield protection and ~~11.21~~ taxes) of Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation) and for purposes of Section 10.06, (iv) Borrower, ~~the~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan ~~Documents other than those~~ Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent (as between the assigning Lender and such participant) to any matter which (A) ~~extend any Amortization Date, any applicable Maturity~~ extends the Revolving Termination Date as to such participant or any other date upon which any payment of money is due to ~~the Lenders~~such participant, (B) ~~reduce~~ reduces the rate of interest ~~on the Notes,~~ owing to such participant or any fee or any other monetary amount ~~payable~~ owing to ~~the Lenders~~such participant, or (C) ~~reduce~~ reduces the amount of any ~~installment~~ scheduled payment of principal ~~due under~~ owing to such participant. Any Lender that sells a participation to any Person that is a “foreign corporation, partnership or trust” within the ~~Notes,~~ meaning of the Code shall include in its participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.20 as if such Person were a Lender and provide that Administrative Agent and Borrower shall be third party beneficiaries of such covenant. Each Lender that sells or grants a participation shall (Da) ~~release any Guarantor~~ withhold or deduct from ~~its Guaranty. (f) Borrower agrees that upon~~ each payment to the ~~occurrence and during~~ holder of such participation the ~~continuance~~ amount of any ~~Event~~ tax required under applicable law to be withheld or deducted from such payment and not withheld or deducted therefrom by Borrower or Administrative Agent, (b) pay the tax so withheld or deducted by it to the appropriate taxing authority in accordance with applicable law and (c) indemnify Borrower and Administrative Agent for any losses, cost and expenses that they may incur as a result of ~~Default~~any failure to so withhold or deduct and pay such tax. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each ~~Lender shall be entitled to assign its rights hereunder~~ participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan ~~Documents~~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 Revolving Commitments, Extensions of Credit or ~~grant~~ its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Revolving Commitments, Extensions 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 ~~interests in its rights under~~ for all purposes of this Agreement ~~and the Loan Documents, to any Person, in whole or in any part thereof,~~ notwithstanding any ~~provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document~~ notice to the contrary. For the avoidance of doubt, ~~except that, other than~~ Administrative Agent (~~i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described~~ in ~~the last sentence of subsection (a) above, no assignment shall be made without the approval of the~~ its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

Appears in 2 contracts

Sources: Credit Agreement, Credit Agreement (Comcast Corp)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which ~~Borrower~~ each of the Credit Parties is a ~~Party~~ party will be binding upon and inure to the benefit of ~~Borrower~~each Credit Party, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that ~~Borrower~~ (i) no Credit Party may ~~not~~ assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders~~. Each~~ , and (ii) no Lender ~~represents that it is not acquiring~~ may assign or transfer its ~~Note~~ rights or obligations hereunder except in accordance with ~~a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)~~this Section. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve ~~Bank~~Lender, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve ~~Bank~~ Lender the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more ~~Eligible Assignees~~ assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)~~Pro Rata Share; provided ~~that, subject to subsection (f) below,~~ that (i) so long as no Default or Event of Default has occurred and is continuing such assignee shall be an Eligible ~~Assignee~~Assignee and, if such assignee is not then a ~~Lender or~~ Lender, an Affiliate of a Lender or a CLO, any such assignment shall require the ~~assigning Lender, shall be approved by~~ prior written consent of the ~~Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed)~~Company, (ii) any such assignment shall ~~be evidenced by an Assignment and Acceptance, a copy~~ require the prior written consent of ~~which shall be furnished to~~ the Administrative ~~Agent as hereinbelow provided~~Agent, (iii) any such assignment shall require the written consent of the Issuing Bank, and (iv) except in the case of an assignment to an Affiliate of the assigning Lender, to a CLO administered or managed by the assigning Lender or an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement,~~ Lender; the assignment shall not assign a ~~portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that~~ Pro Rata Share which is equivalent to less than ~~$3,000,000,~~ the Minimum Amount therefore. No consent required by this section 10.05(b) shall be unreasonably withheld or delayed; it being understood that it shall not be deemed unreasonable to withhold such consent if based solely on the desire to avoid the payment of additional costs or taxes. A copy of a Notice of Assignment and ~~(iv)~~ Acceptance shall be delivered to the Administrative Agent with respect to any assignment. The effective date of any such assignment shall be as specified in the Notice of Assignment and Acceptance, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date the Administrative Agent has received the Notice of Assignment and Acceptance. Upon acceptance by the ~~effective date~~ Administrative Agent of such Notice Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. ~~Borrower~~ Each Credit Party agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to ~~Borrower~~ such Credit Party of ~~such Lender’s Notes~~any Note) to such assignee Lender, one or more Notes evidencing that assignee Lender’s ~~Commitments and/or Advances~~Pro Rata Share, and to the assigning ~~Lender~~Lender if requested, one or more Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an a Notice of Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ any Credit Party or the performance by ~~Borrower~~ any Credit Party of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section ~~7.1~~ 6.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Notice of Assignment and ~~Acceptance executed by any Lender and an Eligible Assignee~~Acceptance, and receipt of an assignment fee of $3,500 from such ~~Lender or~~ Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to ~~Borrower~~ the Company and the Lenders a revised Schedule ~~1.1~~ 10.02 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (including another Lender) in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Pro Rata Share; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6, 11.11 and 11.21~~ Article III but only to the extent that the cost of such benefits to ~~Borrower~~ the Company does not exceed the cost which ~~Borrower~~ the Company would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, (iv) ~~Borrower~~the Credit Parties, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation ~~interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and~~ shall not restrict an increase in the ~~Revolving Facility (or the aggregate~~ Commitments ~~pertaining thereto),~~ or in the granting Lender’s ~~rights and obligations hereunder~~Pro Rata Share, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend ~~any Amortization Date, any applicable~~ the Maturity Date as to such participant or any other date upon which any payment of money is due to ~~the Lenders~~such participant, (B) reduce the rate of interest ~~on the Notes~~owing to such participant, any fee or any other monetary amount ~~payable~~ owing to ~~the Lenders,~~ such participant or (C) reduce the amount of any installment of principal ~~due under the Notes, or~~ owing to such participant. A Lender granting a participation in accordance with this clause (De) ~~release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender~~ shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document give Requisite Notice to the ~~contrary, except that, other~~ Company on by executing and delivering a Notice of Participation no later than ~~(i) assignments by a Lender to an Affiliate~~ 5 Business Days after the effective date of such ~~Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~participation.

Appears in 2 contracts

Sources: Credit Agreement (Science Applications International Corp), Credit Agreement (Science Applications International Corp)

Binding Effect; Assignment. (a) This Agreement shall become effective on the date (the “Restatement Effective Date”) (i) when it shall have been executed by the Borrower, the Agents and by each Bank and shall have been delivered to the Agent and (ii) when the conditions set forth in Article VI are met to the satisfaction of, or waived in writing by, the Agent and the ~~other Loan Documents to which Borrower is a Party will~~ Required Lenders, and thereafter shall be binding upon and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent,~~ Borrower and each of the ~~Lenders,~~ Banks and their respective successors and assigns, except that the Borrower ~~may~~ shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of all of the ~~Lenders~~Banks, which consent may be withheld in their sole discretion. Each ~~Lender represents that it is not acquiring~~ Bank may at any time grant participations in any of its rights hereunder or under its Note ~~with a view~~ or Notes to ~~the distribution thereof within the meaning~~ another commercial bank, financial institution, mutual fund or any institutional “accredited investor” (as defined in Regulation D of the Securities Act of 1933, as ~~amended~~ amended), provided, that in the case of any such participation, the participant shall not have any rights under this Agreement, the Notes or any Related Writing (~~subject~~ the participant’s rights against such Bank in respect of any such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all amounts payable by such Bank hereunder shall be determined as if such Bank had not sold such participation; and provided, further, that no Bank shall transfer, assign or grant any ~~requirement that disposition~~ participation under this Agreement under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any Related Writing. (b) Notwithstanding the foregoing, (i) any Bank may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to an affiliate of such ~~Note must~~ Bank and (ii) with the consent of the Agent and the Borrower so long as no Possible Default or Event of Default then exists (which consents shall not be ~~within~~ unreasonably withheld or delayed), any Bank may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more commercial banks, financial institutions (including one or more Banks), mutual funds or institutional “accredited investors” (as defined in Regulation D of the ~~control~~ Securities Act of 1933, as amended), provided, that (A) any assignment of a Bank’s Loans shall include a ratable part of such ~~Lender~~Bank’s Commitment, and (B) the consent of the Agent (which consent shall not be unreasonably withheld or delayed) shall be required for any assignment of a Commitment to the extent any letters of credit are outstanding. No assignment pursuant to subsection (ii) of the immediately preceding sentence shall be in an aggregate amount less than Ten Million Dollars ($10,000,000). ~~Any Lender~~ If any Bank so sells all or a part of its rights hereunder or under any Note, any reference in this Agreement or such Note to such assigning Bank shall thereafter refer to such Bank and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Bank. Each assignment pursuant to Section 13.08(b)(ii) shall be effected by the assigning Bank and the assignee Bank executing a Bank Assignment and Assumption Agreement substantially in the form of Exhibit G (appropriately completed). At the time of any such assignment pursuant to Section 13.08(b)(ii), (X) Exhibit A shall be deemed to be amended to reflect the Commitments of the respective assignee (which shall result in a corresponding reduction of the Commitment of the assigning Bank) and of the other Banks (Y) if any such assignment occurs after the Restatement Effective Date, the Borrower will issue new Notes to the respective assignee and to the assigning Bank (upon delivery of the existing Note or Notes of such assigning Bank) in conformity with the requirements of this Agreement and (Z) the Agent shall receive at the time of each such assignment, from the assigning or assignee Bank, the payment of a nonrefundable assignment fee of $3,000. (c) Notwithstanding any other provisions of this Section 13.08, no transfer or assignment of the interests or obligations of any Bank hereunder or any grant of participations therein shall be permitted if such transfer, assignment or grant would require the Borrower to file a registration Statement with the Securities and Exchange Commission or to qualify the loans under the “Blue Sky” laws of any State. (d) Notwithstanding any other provisions of this Section 13.08, so long as no Event of Default has occurred and is continuing and the Administrative Agent or the Syndication Agent, as applicable, has not resigned or been removed pursuant to the provisions of this Agreement, each Agent agrees that it will not assign or transfer any of its Loans and/or Commitments to the extent that the amount of the Loans and/or Commitments that such Agent would continue to hold following such assignment or transfer would be less than ten percent (10%) of the aggregate Loans and/or Commitments of all of the Banks. (e) Notwithstanding any other provision set forth in this Agreement, any Bank may at any time pledge ~~its Note~~ or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign ~~to one or more Eligible Assignees~~ all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the ~~assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000~~Guaranty and the other documents executed and delivered in connection therewith (including, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptancewithout limitation, the ~~Eligible Assignee named therein shall be a Lender for all purposes~~ Notes held by it) to any Federal Reserve Bank in accordance with Regulation A of ~~this Agreement~~the Federal Reserve Board without notice to, ~~with~~ or the ~~Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances~~consent of, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and AcceptanceAgents, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the ~~performance by Borrower~~ Parent, provided, that no such pledge or assignment or enforcement thereof shall release a Bank from any of ~~the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and~~ its obligations hereunder or substitute any such ~~other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into~~ pledgee or assignee for such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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 Bank as a ~~Lender~~party hereto. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Credit Agreement (Forest City Enterprises Inc), Credit Agreement (Forest City Enterprises Inc)

Binding Effect; Assignment. (a) This Agreement and ~~the other Loan Documents to which Borrower is a Party will~~ any Margin Loans hereunder shall be binding upon and shall inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties and their respective successors and permitted assigns~~, except that Borrower may~~ . The rights and obligations of the parties under this Agreement and under any Margin Loan shall not ~~assign its rights hereunder or thereunder or any interest herein or therein~~ be assigned by either party without the prior written consent of ~~all~~ the ~~Lenders. Each Lender represents that it is not acquiring its Note with a view to~~ other party, and any such assignment without the ~~distribution thereof within the meaning~~ prior written consent of the ~~Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must~~ other party shall be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgenull and void. (b) ~~From~~ Notwithstanding the foregoing, the Bank may at any time ~~to time following the Closing Date, each Lender may~~ assign to one or more ~~Eligible Assignees~~ banks or other financial institutions (each, an “Assignee”) all or any pro rata portion of its rights and obligations under this Agreement ~~(including all or a portion of its Commitment~~and any Margin Loan, and any such Assignee shall assume such rights and obligations, pursuant to an Assignment and Assumption Agreement in the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be form approved by the ~~Administrative Agent~~ Bank and ~~Borrower~~ executed by such Assignee and the Bank, with (~~neither~~ and subject to) the subscribed consent of the Borrower, which ~~approvals~~ shall not be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) if any such ~~Lender’s obligations~~ Assignee is an Affiliate of the Bank, no consent shall be required and (ii) if any Event of Default under this Agreement has occurred and is continuing, no consent of the Borrower to such assignment shall ~~remain unchanged~~be required. Notwithstanding the foregoing, ~~(ii)~~ any such ~~Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions~~ Assignee shall not be ~~a Lender hereunder for~~ entitled to receive any ~~purpose except, if~~ greater payment under Article III hereof than the ~~participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only~~ Bank would have been entitled to receive with respect to the ~~extent~~ rights assigned. (c) The Bank (including its successors and permitted assigns) may, without regard to the foregoing restrictions on assignment contained in this Section 8.06, assign all or any pro rata portion of its rights under this Agreement to a U.S. Federal Reserve Bank, provided that no such assignment shall release the ~~cost~~ Bank from any of ~~such benefits~~ its obligations hereunder. (d) The Bank may at any time, without the consent of, or notice to the Borrower, sell participations to any Person (other than the Borrower ~~does not exceed the cost which Borrower would have incurred~~ or any its Affiliates) (each, a “Participant”) in ~~respect~~ all or a portion of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such LenderBank’s rights and obligations under this Agreement; provided that no such sale of a participation shall release the Bank from any of its obligations hereunder. (e) If the Bank (or its successors or assignees, as applicable) sells a participation, it 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 (vand stated interest) of each Participant’s interest in any obligations under this Agreement or any other Margin Loan Document (the ~~participation~~ “Participant Register”); provided that such Person shall not 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 this Agreement or any other Margin 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 ~~expressed as a percentage of~~ conclusive absent manifest error and the ~~granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase~~ Person whose name is recorded in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long~~ Participant Register as the ~~amount of the participation interest is not affected thereby and (vi) the consent of the holder~~ owner of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be ~~entitled to assign its rights hereunder and under~~ treated as the ~~Loan Documents, or grant~~ owner of such participation ~~interests in its rights under~~ for all purposes of this Agreement ~~and the Loan Documents, to any Person, in whole or in any part thereof,~~ notwithstanding any ~~provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document~~ notice to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 2 contracts

Sources: Master Margin Loan Agreement (Western Asset Diversified Income Fund (WDI)), Master Margin Loan Agreement (Western Asset Middle Market Income Fund Inc.)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the~~ Administrative Agent, ~~each of the Lenders,~~ Lenders and their respective successors and assigns, except ~~that~~ that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to~~ Lenders and any ~~requirement that disposition of~~ such ~~Note must~~ attempted assignment shall be ~~within the control of such Lender)~~void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release ~~that~~ such Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Commitment and/or Extensions of ~~its Commitment, the Advances owing to it and the Note or Notes held by it)~~Credit; provided ~~that, subject to subsection (f) below,~~ that (i) such ~~Eligible Assignee~~assignment, if not ~~then~~ to a Lender or an Affiliate of the assigning Lender, shall be ~~approved~~ consented to by Borrower at all times other than during the existence of a Default or Event of Default and by Administrative Agent and Issuing Lender (which approval of Borrower ~~(neither of which approvals~~ shall not be unreasonably ~~withheld or delayed~~withheld), (ii) ~~such assignment shall be evidenced by an Assignment and Acceptance,~~ a copy of ~~which~~ a duly signed and completed Assignment and Acceptance shall be ~~furnished~~ delivered to ~~the~~ Administrative ~~Agent as hereinbelow provided~~Agent, (iii) except in the case of an assignment (A) to an Affiliate of the assigning ~~Lender,~~ Lender or to another Lender or (B) of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the ~~assignment~~ portion of the Commitment assigned shall not ~~assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to~~ be less than ~~$3,000,000~~the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Assignment and Acceptance. Upon any required consent by Administrative Agent, Issuing Lender and Borrower to such assignment and payment of the ~~effective date of such Assignment and Acceptance~~requisite fee described below, the ~~Eligible Assignee~~ assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~any Note) to such assignee Lender, one or more Notes evidencing ~~that~~ such assignee Lender’s ~~Commitments and/or Advances~~Loans, and to the assigning ~~Lender~~Lender if requested, one or more Notes evidencing ~~the remaining balance of the Commitments and/or Advances~~ Loans under any Commitment retained by the assigning Lender. Administrative Agent’s consent to any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. For purposes hereof, each mutual fund that is an Affiliate of a Lender shall be deemed to be a single Eligible Assignee, whether or not such fund is managed by the same fund manager as other mutual funds that are Affiliates of the same Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and ~~Acceptance executed by any Lender and an Eligible Assignee~~Acceptance, and receipt of an assignment fee of $3,500 from such ~~Lender or~~ Eligible ~~Assignee~~Assignee (including in the case of assignments to Affiliates of assigning Lenders), ~~the~~ Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and ~~the~~ Lenders a revised Schedule ~~1.1~~ 10.02 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (ed) Each Lender may from time to ~~time~~ time, without the consent of any other Person, grant participations to one or more ~~banks or~~ other ~~financial institutions in or to~~ Person (including another Lender) of all or a any portion of its ~~rights and/or obligations under this Agreement~~Pro Rata Share of its Commitment or Extensions of Credit; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6, 11.11 and 11.21~~ Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation) and subject to Sections 10.05 and 10.06, (iv) Borrower, ~~the~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation ~~interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and~~ agreement shall not restrict an increase in the ~~Revolving Facility (or the aggregate~~ combined Commitments ~~pertaining thereto),~~ or in ~~the~~ granting Lender’s ~~rights and obligations hereunder~~Pro Rata Share, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan ~~Documents other than those~~ Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter which (A) ~~extend any Amortization Date, any applicable~~ extends the Maturity Date as to such participant or any other date upon which any payment of money is due to ~~the Lenders~~such participant, (B) ~~reduce~~ reduces the rate of interest ~~on the Notes~~owing to such participant, any fee or any other monetary amount ~~payable~~ owing to ~~the Lenders~~such participant, or (C) ~~reduce~~ reduces the amount of any installment of principal ~~due under~~ owing to such participant. Any Lender that sells a participation to any Person that is a “foreign corporation, partnership or trust” within the ~~Notes, or (D) release any Guarantor from~~ meaning of the Code shall include in its ~~Guaranty. (f)~~ participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.21 as if such Person were a Lender and provide that Administrative Agent and Borrower ~~agrees that upon the occurrence and during the continuance of any Event of Default, each Lender~~ shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate third party beneficiaries of such ~~Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~covenant.

Appears in 2 contracts

Sources: Credit Agreement (Quantum Corp /De/), Credit Agreement (Quantum Corp /De/)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which the Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of the Borrower, the Administrative Agent, ~~each of~~ the ~~Lenders,~~ Lenders and their respective successors and assigns, except ~~that~~ that, the Borrower may ~~not~~ not, except as permitted by Section 7.03, assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to~~ Lenders and any ~~requirement that disposition of~~ such ~~Note must~~ attempted assignment shall be ~~within the control of such Lender)~~void. Any Lender may at any time pledge ~~its~~ a Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve ~~Bank~~Bank or, if such Lender is a fund, to any trustee or to any other representative of holders of obligations owed or securities issued by such fund as security for such obligations or securities, but no such pledge shall release ~~that~~ such Lender from its obligations hereunder or grant to such Federal Reserve Bank or trust or other representative the rights of a Lender hereunder absent foreclosure of such pledge, and any transfer to any Person upon the enforcement of such pledge shall be subject to this Section 10.04. (b) From time to time following the ~~Closing Date~~date of this Agreement, each Lender may assign to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities, all or any portion of its rights and obligations under this Agreement ~~(including all or a portion of its Commitment, the Advances owing to it~~ and the ~~Note or Notes held by it)~~other Loan Documents; provided that~~, subject to subsection (f) below,~~ : (i) such ~~Eligible Assignee~~assignment, if not ~~then~~ to a Lender, an Affiliate of a Lender or an ~~Affiliate~~ Approved Fund, shall require the consent of (A) prior to the initial Extensions of Credit on the Effective Date, the Borrower and solely for administrative purposes, the Administrative Agent, and in the case of the ~~assigning Lender~~Revolving Commitments only, ~~shall be approved by~~ the Administrative Agent and ~~Borrower~~ the Issuing Lenders (~~neither~~ such consents of ~~which approvals shall~~ the Administrative Agent and the Issuing Lenders not to be unreasonably withheld or delayed) and (B) thereafter, with the consent of the Borrower, and in the case of the Revolving Commitments only, the Administrative Agent and the Issuing Lenders (in each case, such consents not be unreasonably withheld or delayed); and provided further, that no consent of the Borrower shall be required for an assignment to any Person if an Event of Default under any of subsections (a), (b) or (i) of Section 8.01 of this Agreement has occurred and is continuing; (ii) ~~such assignment shall be evidenced by an Assignment and Acceptance,~~ a copy of ~~which~~ a duly signed and completed Assignment and Acceptance shall be ~~furnished~~ delivered to the Administrative ~~Agent as hereinbelow provided,~~ Agent; (iii) except in the case of an assignment ~~to an Affiliate~~ of the entire remaining Term Commitment, Term Loan or Revolving Commitment of the assigning Lender, ~~to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the~~ such assignment shall be in an aggregate principal amount not ~~assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to~~ less than ~~$3,000,000, and~~ the Minimum Amount therefor; and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and ~~Acceptance executed by any Lender and an Eligible Assignee~~Acceptance, and receipt of an assignment fee of $3,500 from such assignee and/or such assigning Lender ~~or Eligible Assignee~~(but not including in the case of assignments to Affiliates and Approved Funds of assigning Lenders), the Administrative Agent ~~shall,~~ shall promptly ~~following~~ accept such Assignment and Acceptance and record the information contained therein in the Register on the effective date ~~thereof, provide to Borrower~~ determined pursuant thereto. The Loans (including the 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. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Loan, and in no event is any such Note to be considered a ~~revised Schedule 1.1 giving effect thereto~~bearer instrument or obligation within the meaning of Section 163(f) of the Code. ~~Borrower~~This Section 10.04 shall be construed so that the Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (or any successor provisions of the Code or such regulations). Solely for purposes of this Section 10.04 and Section 2.13(c) and for tax purposes only, the Administrative Agent ~~and~~ shall act as the ~~Lenders shall deem and treat the Persons listed as Lenders~~ Borrower’s agent for purposes of maintaining such notations of transfer in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityRegister. (ed) Each Lender may from time to ~~time~~ time, without the consent of any other Person, grant participations to one or more ~~banks or~~ other ~~financial institutions~~ Persons (including another Lender) in ~~or to~~ all or a any portion of its ~~rights and/or obligations~~ Loans, Commitments, Extensions of Credit or any other interest of such Lender hereunder and under ~~this Agreement~~the 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 the performance of such obligations, (iii) the participating ~~banks~~ bank or other financial ~~institutions~~ institution shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6, 11.11~~ the yield protection and ~~11.21~~ increased cost provisions of Section 3 (but only to the extent that the cost of such benefits to the Borrower does not exceed the cost which the Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation) and for purposes of Section 10.06, (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,~~ Agreement and (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan ~~Documents other than~~ Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent (as between the assigning Lender and such participant) to those matters with respect to which the affirmative consent of the assigning Lender would be required pursuant to clauses (Aa) ~~extend~~ through (f) of the second sentence of Section 10.01. Any Lender that sells a participation to any ~~Amortization Date~~Person that is a “foreign corporation, ~~any applicable Maturity Date~~ partnership or ~~any other date upon which any~~ trust” within the meaning of the Code shall include in its participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.21 as if such Person were a Lender and provide that the Administrative Agent and the Borrower shall be third party beneficiaries of such covenant. Each Lender that sells or grants a participation shall (a) withhold or deduct from each payment ~~of money is due~~ to the ~~Lenders, (B) reduce the rate~~ holder of ~~interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce~~ such participation the amount of any ~~installment of principal due~~ tax required under applicable Laws to be withheld or deducted from such payment and not withheld or deducted therefrom by the ~~Notes~~Borrower or the Administrative Agent, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) ~~above)~~ pay the tax so withheld or ~~in any other Loan Document~~ deducted by it to the ~~contrary, except that, other than~~ appropriate taxing authority in accordance with applicable Law and (ic) ~~assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in~~ indemnify the ~~last sentence of subsection (a) above, no assignment shall be made without the approval of~~ Borrower and the Administrative ~~Agent~~Agent for any losses, cost and expenses that they may incur as a result of any failure to so withhold or deduct and pay such tax.

Appears in 2 contracts

Sources: Credit Agreement (NBCUniversal Media, LLC), Credit Agreement (General Electric Co)

Binding Effect; Assignment. (a) ~~This~~ The provisions of this Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties hereto and their respective successors and ~~assigns~~assigns permitted hereby, except that neither Borrower nor any other Party may ~~not~~ assign or otherwise transfer any of its rights or obligations hereunder ~~or thereunder or any interest herein or therein~~ without the prior written consent of ~~all~~ the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except for the following (any other attempted assignment or transfer by any party hereto shall be null and void): (i) to an Eligible Assignee in accordance with the provisions of clause (b) of this Section; (ii) by way of participation in accordance with the provisions of clause (d) of this Section; (iii) by way of pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section; or (iv) to an SPC in accordance with the provisions of clause (h) of this Section. 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 clause (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Lender and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. Each Lender represents that it is not acquiring its ~~Note~~ Notes with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of ~~such Note~~ its Notes must be within the control of such Lender). . (b) Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or ~~any~~ a portion of its rights and obligations under this Agreement (~~including all or~~ and, to the extent it assigns its Class A Loans, a corresponding portion of its ~~Commitment~~Class A Funding Requirement) and the Loans (including for purposes of this clause (b), participations in L/C Obligations) at the ~~Advances~~ time owing to ~~it and the Note or Notes held by~~ it); provided ~~that,~~ that any such assignment shall be subject to ~~subsection (f) below,~~ the following conditions: (i) ~~such Eligible Assignee, if not then a Lender or~~ in the case of an ~~Affiliate~~ assignment of the entire remaining amount of the assigning Lender~~, shall be approved by~~ ’s Class A Funding Requirement or all of the ~~Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld~~ assigning Lender’s other Loans at the time owing to it or ~~delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except~~ in the case of an assignment to a Lender, an Affiliate of ~~the assigning Lender, to another~~ a Lender or an Approved Fund, no minimum amount need be assigned; (ii) in any case not described in subsection (b)(i) of this Section, the amount of the ~~entire remaining rights and obligations~~ Class A Funding Requirement (which for this purpose includes any Class A Loans outstanding thereunder) or other Loans or, if the Class A Funding Requirements are not then in effect, the principal outstanding balance of the Loans of the assigning Lender ~~under this Agreement~~subject to each such assignment, determined as of the ~~assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing~~ date the Assignment and Assumption with respect to such ~~assigning Lender that~~ assignment is ~~equivalent~~ delivered to ~~less than $3,000,000~~the Administrative Agent or, ~~and (iv) the effective date of any such assignment shall be as~~ if “Trade Date” is specified in the Assignment and ~~Acceptance~~Assumption, ~~but~~ as of the Trade Date, shall not ~~earlier than~~ be less than, with respect to (A) the ~~date which is five~~ Class A Funding Requirements or Class A Loans, $5,000,000 and (5B) ~~Banking Days after~~ the ~~date~~ other Loans, $1,000,000, unless each of the Administrative Agent and, so long as no Event of Default has ~~received~~ occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met; (iii) 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 (and, in the case of the Class A Loans, that Lender’s Class A Funding Requirement) assigned, except that this clause (iii) shall not (A) apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Commitments on a non-pro rata basis; (iv) the consent of the Administrative Agent, the Issuing Lender and any Swing Line Lender (such consent not to be unreasonably withheld) shall be required for assignments of any portion of the Class A Loans and Class A Funding Requirements if such assignment is to a Person that is not a Class A Lender, an Affiliate of such Class A Lender or an Approved Fund with respect to such Class A Lender; (v) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and ~~Acceptance~~Assumption, together with a processing and recordation fee of $3,500, provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment, and the Eligible Assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; (vi) each assignment of Class A-1 Loans by a Class A-1 Lender must be accompanied by a proportionate assignment to, and assumption by the assignee Lender of, its Class A Funding Requirement, and each assignment of Class A-2 Loans and related Class A Revolving Obligations by a Class A-2 Lender must be accompanied by a proportionate assignment to, and assumption by the assignee Lender of, its Class A Funding Requirement, and the corresponding Class A Loans and Class A Revolving Obligations thereafter made by the assignee Lender shall be treated as under the same sub-Class (i.e., Class A-1 or Class A-2); (vii) no such assignment shall be made to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (vii); and (viii) in connection with any assignment of rights and obligations in respect of any Class A Funding Requirement of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and the Administrative Agent, the applicable pro rata share of Class A Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the Issuing Lender or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Class A Percentage. ~~Upon~~ Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective ~~date~~ under applicable Law without compliance with the provisions of this paragraph, then the assignee of such ~~Assignment and Acceptance, the Eligible Assignee named therein~~ interest shall be deemed to be a Defaulting Lender for all purposes of this ~~Agreement~~Agreement until such compliance occurs. Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of this Section, ~~with~~ from and after the ~~Commitments and/or Advances therein set forth~~ effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such ~~Commitments and/or Advances~~Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender ~~shall~~ thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its ~~further~~ obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.6, 3.7 and 11.11 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, Borrower ~~agrees that it~~ and each Co-Borrower (at their sole expense) shall execute and deliver ~~(against delivery by~~ a Note under the ~~assigning Lender~~ relevant Commitment to ~~Borrower of such Lender’s Notes) to such~~ the assignee Lender~~, Notes evidencing~~ . Any assignment or transfer by a Lender of rights or obligations under this Agreement that ~~assignee Lender’s Commitments and/or Advances,~~ does not comply with this clause shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and ~~to the assigning Lender, Notes evidencing the remaining balance~~ obligations in accordance with clause (d) of ~~the Commitments and/or Advances retained by the assigning Lender~~this Section. (c) ~~By executing and delivering~~ The Administrative Agent, acting solely for this purpose as an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition agent of Borrower or and the ~~performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement~~Co-Borrowers, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and ~~Acceptance~~ Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Class A Funding Requirements of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”~~) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance~~). The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive, and ~~receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee~~Borrower, the ~~Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower~~Co-Borrowers, the Administrative Agent and the Lenders ~~shall deem and~~ may treat ~~the Persons listed as Lenders~~ each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the ~~holders~~ contrary. The Register shall be available for inspection by each of Borrower, each Co-Borrower and ~~owners~~ the Issuing Lender at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or substantive change to the Loan Documents is pending, any Lender wishing to consult with other Lenders in connection therewith may request and receive from the Administrative Agent a copy of the Register. (d) Any Lender may at any time, without the consent of, or notice to, Borrower, any Co-Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of that Lender’s rights and/or obligations under this Agreement (including all or a portion of any of its Pro Rata Shares of the ~~Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any~~ Commitments and/or the Loans (including that Lender’s ~~rights and obligations hereunder shall be effective,~~ participations in ~~each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as~~ L/C Obligations and/or Swing Line Loans) owing to it); provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) ~~such~~ that Lender’s obligations under this Agreement shall remain unchanged, (ii) ~~such~~ that Lender shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative ~~Agent~~ Agent, the Lenders and the ~~other Lenders~~ Issuing Lender shall continue to deal solely and directly with ~~such~~ that Lender in connection with ~~such~~ that 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, waiver or other modification described in Section 11.2 requiring the consent of that Lender and which also affects such Participant. Subject to clause (e) of this Section, Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.6 and 3.7 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section. (e) A Participant shall not be entitled to receive any greater payment under Section 3.6 or 3.7 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 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 3.11(d) unless Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of Borrower, to comply with Section 11.21 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) The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. (h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to an SPC the option to provide all or any part of any Loan 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 Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof or, if it fails to do so, to make such payment to the Administrative Agent as is required under Section 2.10. Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of Borrower under this Agreement (including its obligations under Sections 3.6 and 3.7), (vii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the ~~participation interest~~ Granting Lender shall ~~be expressed as~~ for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a ~~percentage of~~ Loan by an SPC hereunder shall utilize the ~~granting Lender’s~~ Pro Rata Share of the ~~Revolving Facility~~ relevant Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any SPC, it ~~then exists and shall~~ will not ~~restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)~~institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under the ~~granting Lender’s rights and obligations hereunder, so long as the amount~~ laws of the ~~participation interest is not affected thereby and (vi)~~ United States or any State thereof. Notwithstanding anything to the ~~consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date~~contrary contained herein, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than SPC may (i) ~~assignments by a Lender to an Affiliate~~ with notice to, but without prior consent of ~~such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of~~ Borrower and the Administrative ~~Agent.~~Agent and with the payment of a processing fee of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion), assign all or any portion of its right to receive payment with respect to any Loan to the Grant

Appears in 2 contracts

Sources: Loan Agreement (MGM Resorts International), Loan Agreement (MGM Resorts International)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the ~~Administrative Agent, each of the Lenders~~Creditors, and their respective successors and assigns, except that except as permitted in Section 6.4, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the ~~Lenders~~Banks. Each ~~Lender~~ Bank represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such ~~Lender~~Bank). Any ~~Lender~~ Bank may at any time pledge its Note or any other instrument evidencing its rights as a ~~Lender~~ Bank under this Agreement to a Federal Reserve Bank, but no such pledge shall release that ~~Lender~~ Bank from its obligations hereunder or grant to such Federal Reserve Bank the rights of a ~~Lender~~ Bank hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each ~~Lender~~ Bank may assign to one or more Eligible Assignees all or any portion of its ~~rights~~ Pro Rata Share and ~~obligations under this Agreement (including all or a portion of~~ its ~~Commitment, the Advances owing to it and the Note or Notes held by it)~~Notes; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a ~~Lender~~ Bank or an Affiliate of the assigning ~~Lender~~Bank having a combined capital and surplus in excess of $100,000,000, shall be approved by each of the Administrative Agent (which approval shall not be unreasonably withheld) and Borrower (~~neither~~ which approval may be withheld in the sole discretion of ~~which approvals shall~~ Borrower but will not be ~~unreasonably withheld or delayed~~required if an Event of Default has occurred and remains continuing), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning ~~Lender~~Bank, to another ~~Lender~~ Bank or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Bank, the assignment shall not assign a ~~portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that~~ Pro Rata Share which is ~~equivalent to~~ less than $~~3,000,000~~10,000,000, and (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a ~~Lender~~ Bank for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning ~~Lender~~ Bank shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning ~~Lender~~ Bank to Borrower of ~~such Lender’s~~ its Notes) to such assignee ~~Lender~~Bank, Notes evidencing that assignee ~~Lender’s Commitments and/or Advances~~Bank's Pro Rata Share, and to the assigning ~~Lender~~Bank, Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning ~~Lender~~Bank. (c) By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning ~~Lender~~ Bank has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning ~~Lender~~ Bank has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon ~~the Administrative Agent or~~ any ~~Lender~~ other Creditor 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) it appoints and ~~authorizes~~ auth- orizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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~~Bank. (d) The Administrative Agent shall maintain ~~at the Administrative Agent’s Office~~ a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agentit. After receipt of a completed Commitment Assignment and Acceptance executed by any ~~Lender~~ Bank and an Eligible Assignee, and receipt of an assignment fee of $~~3,500~~ 2,500 from such ~~Lender or~~ Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the ~~Lenders~~ Banks a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each ~~Lender~~ Bank may from time to time grant participations in a portion of its Pro Rata Share (with the consent of Borrower which consent shall not be unreasonably withheld) or in any Competitive Advance (without the requirement of such consent), in each case to one or more banks or other financial institutions ~~in or to all or a portion of its rights and/or obligations under this Agreement~~(including another Bank); provided, however, that (i) such ~~Lender’s~~ Bank's obligations under this Agreement shall remain unchanged, (ii) such ~~Lender~~ Bank shall remain solely responsible to the other parties hereto for the ~~performance~~ perfor- mance of such obligations, (iii) the participating banks or other financial institutions shall not be a ~~Lender~~ Bank hereunder ~~for~~ f▇▇ any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.7, ~~3.6~~3.8, 11.11 and ~~11.21~~ 11.25 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the Lender granting~~ such ~~participation~~ Bank absent the participation, (iv) ~~Borrower, the Administrative Agent~~ Borrower and the other ~~Lenders~~ Creditors shall continue to deal solely and directly with such ~~Lender~~ Bank in connection with such ~~Lender’s~~ Bank's rights and obligations under this Agreement, (v) the participation interest shall ~~be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall~~ not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~Commitment, or in the granting ~~Lender’s rights and obligations hereunder~~Bank's Pro Rata Share, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend ~~any Amortization Date, any applicable~~ the Maturity Date or any other date upon which any payment of money is due to the ~~Lenders~~Banks, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the ~~Lenders~~Banks, (C) reduce the amount of any installment of principal due under the ~~Notes,~~ Notes or (D) ~~release any Guarantor from its Guaranty~~change the definition of "Requisite Banks." (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests Notwithstanding anything in ~~its rights under~~ this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Section to the contrary, ~~except that~~the rights of the Banks to make assignments of, ~~other than (i) assignments by a Lender to an Affiliate~~ and grant participations in, their Pro Rata Share of ~~such Lender or to another Lender or (ii) pledges described in~~ the ~~last sentence of subsection (a) above, no assignment~~ Commitment shall be ~~made without~~ subject to the approval of any Gaming Board, to the ~~Administrative Agent~~extent required by applicable Gaming Laws.

Appears in 1 contract

Sources: Loan Agreement (Circus Circus Enterprises Inc)

Binding Effect; Assignment. (aA) This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of the Borrower, the ~~Administrative Agent,~~ Custodian and the Agent and each ~~of the Lenders~~Lender, and their respective successors and assigns, except that the Borrower ~~may~~ shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of ~~all~~ the Agent and the Lenders, and any assignment by the Borrower in violation of this Section 9.8 shall be null and void. ~~Each Lender represents that it is not acquiring its Note with a view~~ Notwithstanding anything to the ~~distribution thereof within~~ contrary in the ~~meaning~~ first sentence of ~~the Securities Act of 1933~~this Section 9.8, ~~as amended (subject to~~ any ~~requirement that disposition of such Note must be within the control of such Lender). Any~~ Lender may at any ~~time pledge its Note~~ time, without the consent of the Borrower or the Agent, assign all or any ~~other instrument evidencing~~ portion of its rights ~~as a Lender~~ under this Agreement and any Loan Note to a Federal Reserve Bank; provided, ~~but~~ that no such assignment or pledge shall release ~~that~~ the transferor Lender from its obligations ~~hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge~~hereunder. (bB) ~~From time to time following the Closing Date, each~~ Each Lender may assign to one or more ~~Eligible Assignees~~ banks or other entities all or any part or portion of its rights and obligations hereunder (including, without limitation, its Commitment, its Loan Notes or its Advances); provided, that each such assignment (i) shall be in form and substance acceptable to the Agent, (ii) shall, without limiting the rights of the Borrower under subclause (iii) below and unless either (x) such assignee is a Permitted Assignee or (y) an Event of Default or Amortization Event shall have occurred and is continuing, be approved by the prior written consent of the Borrower (such consent not to unreasonably withheld or delayed), (iii) shall not be made to a Person that is a Disqualified Lender as of the date on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights and obligations under this Agreement to such Person (~~including all or~~ unless the Borrower has consented to such assignment in writing in its sole and absolute discretion, which, in either such case, such Person shall not be considered a ~~portion~~ Disqualified Lender for the purpose of ~~its Commitment, the Advances owing to it and the Note or Notes held by it~~this Agreement)~~; provided that, subject to subsection (f) below~~, (iiv) shall either be made to a Permitted Assignee or to a Person which is acceptable to the Agent (such ~~Eligible Assignee, if~~ consent not ~~then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall~~ to be unreasonably withheld or delayed), ) and (iiv) the parties to each such assignment shall ~~be evidenced by~~ execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment Agreement, together with any Loan Note or Loan Notes subject to such assignment and ~~Acceptance~~a processing and recordation fee of $3,000. Upon execution, ~~a copy~~ delivery, acceptance and recording of ~~which~~ an Assignment Agreement, from and after the effective date specified in such Assignment Agreement, (A) the assignee thereunder shall be ~~furnished~~ a party hereto and, to the ~~Administrative Agent as hereinbelow provided~~extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement, have the rights and obligations of a Lender hereunder (~~iii~~including the obligation to provide documentation pursuant to Section 2.15(G)) ~~except~~ of a Lender hereunder) and (B) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment Agreement, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an ~~assignment to~~ Assignment Agreement covering all or the remaining portion of an ~~Affiliate of the~~ assigning Lender~~, to another Lender or of the entire remaining~~ ’s rights and obligations ~~of the assigning Lender~~ under this Agreement, such Lender shall cease to be a party hereto). (C) If any assignment is made to a Disqualified Lender in violation of this Section 9.8, the ~~assignment shall~~ Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Lender and the Agent, (i) purchase or prepay the Advances held by such Disqualified Lender by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified ▇▇▇▇▇▇ paid to acquire such Advances, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (ii) require such Disqualified Lender to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 9.8), all of its interest, rights and obligations under this Agreement to one or more banks or other entities at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder. (D) Disqualified Lenders (i) will not, absent consent from the Borrower (x) have the right to receive financial reports that are not ~~assign a portion~~ publicly available, Monthly Servicer Reports or other reports or confidential information provided to Lenders by the Borrower or the Agent (other than Tax reporting information with respect to the Advances), (y) attend or participate in meetings with the Borrower attended by the Lenders and the Agent, or (z) access any electronic site maintained by the Borrower or Agent to provide Lenders with confidential information or confidential communications from counsel to or financial advisors of ~~such assigning Lender’s Commitments and/or Advances owing~~ the Agent and (ii) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Transaction Document, each Disqualified Lender will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Lenders consented to such ~~assigning Lender that is equivalent to less than $3,000,000~~matter, and (ivy) for purposes of voting on any plan of reorganization or plan of liquidation, each Disqualified Lender party hereto hereby agrees (1) not to vote on such plan, (2) if such Disqualified ▇▇▇▇▇▇ does vote on such plan notwithstanding the ~~effective date of any~~ restriction in the foregoing clause (1), such ~~assignment~~ vote will be deemed not to be in good faith and shall be ~~as specified~~ “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other debtor relief laws), and such vote shall not be counted in determining whether the ~~Assignment~~ applicable class has accepted or rejected such plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other debtor relief laws) and ~~Acceptance, but~~ (3) not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be to contest any request by any party for a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery determination by the ~~assigning Lender to Borrower~~ Bankruptcy Court (or other applicable court of ~~such Lender’s Notes~~competent jurisdiction) ~~to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to~~ effectuating the ~~assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender~~foregoing clause (2). (cE) By executing and delivering an Assignment ~~and Acceptance~~Agreement, the ~~Eligible Assignee~~ Lender assignor thereunder ~~acknowledges~~ and ~~agrees that~~the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than ~~the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim~~as provided in such Assignment Agreement, ~~the~~ such assigning Lender ~~has made~~ 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 Transaction Document or the execution, legality, validity, enforceability, ~~genuineness~~ genuineness, sufficiency or ~~sufficiency~~ value of this Agreement or any other ~~Loan Document~~Transaction Document or any other instrument or document furnished pursuant hereto or thereto; (ii) ~~the~~ such assigning Lender ~~has made~~ 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 ~~the Obligations~~any of its Obligations under this Agreement or any other Transaction Document or instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the ~~most recent~~ financial statements ~~delivered pursuant to Section 7.1~~ of the Borrower, 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~~Agreement; (iv) it such assignee will, independently and without reliance upon the ~~Administrative Agent~~ 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) it 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 Transaction Documents as are delegated to the ~~Administrative~~ Agent by ~~this Agreement~~the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (dF) The ~~Administrative~~ Agent shall maintain at one of its offices in the ~~Administrative Agent’s Office~~ United States (as defined in Section 7701(a)(9) of the Code) a copy of each Assignment ~~and Acceptance~~ Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitments of, and outstanding principal amount (and accrued interest) of the Advances owing to, each Lender from time to time (the “Register”~~) of~~ ). The entries in the ~~names~~ Register shall be conclusive and ~~address of each of~~ binding for all purposes, absent manifest error, and the Borrower, the Agent and the Lenders ~~and~~ shall treat each Person whose name is recorded in the ~~Pro Rata Share~~ Register as a Lender hereunder for all purposes of ~~the Commitments held by each Lender, giving effect to each Assignment and Acceptance~~this Agreement. The Register shall be available ~~during normal business hours~~ for inspection by the Borrower or and each Lender at any ~~Lender~~ reasonable time and from time to time upon reasonable prior notice to the ~~Administrative~~ Agent~~. After~~ . (G) Upon its receipt of ~~a completed~~ an Assignment ~~and Acceptance~~ Agreement executed by ~~any~~ an assigning Lender and an ~~Eligible Assignee~~assignee, ~~and receipt of an assignment fee of $3,500 from~~ together with any Loan Note subject to such ~~Lender or Eligible Assignee~~assignment, the ~~Administrative~~ Agent shall, ~~promptly following~~ if such Assignment Agreement has been completed and is in substantially the form of Exhibit E-2 hereto, (i) accept such Assignment Agreement, (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 no cost to the Agent or the Lenders, shall execute and deliver to the Agent, in exchange for the surrendered Loan Note, a new Loan Note to the order of such assignee Lender in an amount equal to the Commitment assumed by it pursuant to such Assignment Agreement and, if the assigning ▇▇▇▇▇▇ has retained a Commitment hereunder, a new Loan Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Loan Note or Loan Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Loan Note or Loan Notes, shall be dated the effective date ~~thereof~~of such Assignment Agreement and shall otherwise be in substantially the form of Exhibit C. (H) Any Lender may, ~~provide to Borrower and~~ without the ~~Lenders a revised Schedule 1.1 giving effect thereto.~~ consent of the Borrower, ~~the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders~~ sell participation interests in ~~the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights~~ its Advances and obligations hereunder ~~shall be effective, in~~ to a Person that is not a Disqualified Lender (each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such ~~recordation, all amounts owed with respect to the applicable Pro Rata Share~~ recipient of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or participation a ~~portion of its rights and/or obligations under this Agreement~~“Participant”); provided, ~~however~~that after giving effect to the sale of such participation, ~~that (i)~~ such ~~Lender~~▇▇▇▇▇▇’s obligations ~~under this Agreement~~ hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, ~~(ii)~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ~~(iii) the participating banks or other financial institutions shall not be a~~ all amounts payable to such Lender hereunder ~~for~~ and all rights to consent to any ~~purpose except,~~ waiver hereunder or amendment hereof shall be determined as if ~~the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of~~ such ~~benefits to Borrower does~~ Lender had not ~~exceed the cost which Borrower would have incurred in respect of the Lender granting~~ sold such participation ~~absent~~ interest, and the ~~participation, (iv)~~ Borrower, the ~~Administrative~~ Agent and the other ~~Lenders~~ parties hereto shall continue to deal solely and directly with such Lender and not be obligated to deal with such participant. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register in which it enters the name and address of each Participant and the outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction 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 Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. 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 shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligations under Section 2.15(G) and Section 2.18), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.15 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. Notwithstanding any other provision of this Agreement to the contrary, (i) a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to a security trustee in connection with the funding by such ~~Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage~~ Lender of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) Advances without the consent of the ~~holder of~~ Borrower; provided that no such ~~participation interest~~ pledge or grant shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release ~~any Guarantor~~ such Lender from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights obligations under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) ~~pledges described in~~ a Conduit Lender may at any time, without any requirement to obtain the ~~last sentence of subsection (a) above, no assignment shall be made without the approval~~ consent of the ~~Administrative Agent~~Agent or the Borrower, pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of capital and yield) under this Agreement to a collateral agent or trustee for its commercial paper program.

Appears in 1 contract

Sources: Credit Agreement (Sunnova Energy International Inc.)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding ~~upon~~ on and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity (including any employee or person engaged by the Company in any capacity) not a party to this Agreement. The Company will require any successor (whether direct or indirect, ~~except that Borrower may not assign its rights hereunder~~ by merger, purchase, consolidation or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning otherwise) of the ~~Securities Act~~ Company to make an express assumption of ~~1933~~the obligations hereunder and cause any successor (whether direct or indirect, ~~as amended (subject~~ by merger, purchase, consolidation or otherwise) to ~~any requirement that disposition~~ all or substantially all of ~~such Note must be within~~ the ~~control~~ business and/or assets of ~~such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender~~ the Company to agree to perform all parts and provisions under this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. Failure of the Company to obtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle Employee to compensation from the Company in the same amount and on the same terms as he would be entitled to hereunder if he is subject to a ~~Federal Reserve Bank~~Construction Termination, ~~but no~~ except for purposes of implementing the foregoing, the date on which any such ~~pledge~~ succession becomes effective shall ~~release that Lender from its obligations hereunder~~ be deemed the date of Termination. As used in this Agreement, Company shall mean the Company as hereinbefore defined and any successor to the business and/or assets of the Company which executes and delivers the agreement provided for in this section 8, or ~~grant to such Federal Reserve Bank~~ which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law. This Agreement and all rights of ~~a Lender~~ the Employee hereunder ~~absent foreclosure of~~ shall inure to the benefit of, and be enforceable by the Employee s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Employee should die after any amounts shall become payable to him hereunder, all such ~~pledge. (b) From time to time following the Closing Date~~amounts, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); unless otherwise provided ~~that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender~~for herein, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform paid in accordance with ~~their terms all of the obligations which by~~ the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the ~~Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee~~Employee s devisee, ~~and receipt of an assignment fee of $3,500 from~~ legatee or other designee or, if there be no such ~~Lender~~ devisee or ~~Eligible Assignee~~other designee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityEmployee s estate. 9. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Change of Control Agreement (Quixote Corp)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, the Collateral Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its ~~Note~~ Advances and other Obligations hereunder with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it~~ respective Commitments and the ~~Note or Notes held by it)~~Loans; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and the Issuing Lender and (if no Event of Default pursuant to Section 9.1(a), (b) or (j) then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed); provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 10 Banking Days after having received notice thereof, (ii) no such assignment shall be made to (A) Borrower or any of Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), (iii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (~~iii~~iv) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitments and/or Loans of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a any portion of ~~such assigning Lender’s Commitments~~ any Commitment and/or ~~Advances owing to such assigning Lender~~ Loans that is equivalent to less than $~~3,000,000,~~ 5,000,000 and (ivv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments and/or ~~Advances~~ Loans therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Borrower agrees ~~that~~ that, to the extent requested by any such Lender, it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s~~ its Notes) to such assignee Lender, Notes evidencing that assignee Lender’s respective Commitments and/or ~~Advances~~Loans, and to the assigning Lender, Notes evidencing the remaining balance of ~~the~~ its respective Commitments and/or ~~Advances retained~~ Loans. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the ~~assigning~~ assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the Issuing Lender, the Swing Line Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Commitments and/or Loans being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent, the Collateral 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; (v) it appoints and authorizes the Administrative Agent and the Collateral Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments and/or Loans held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent, the Collateral Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the ~~Pro Rata Shares of the Revolving Facility~~ Commitments and/or Loans listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Commitments and/or Loans shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the ~~applicable Pro Rata Share of the Revolving Facility~~ Commitments and/or Loans shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding ~~Pro Rata Share of the Revolving Facility~~Commitments and/or Loans. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (other than a Defaulting Lender or Borrower or any of Borrower’s Affiliates or Subsidiaries) in ~~or to all or~~ a portion of ~~its rights~~ the Commitments and/or ~~obligations under this Agreement~~Loans; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.6, ~~3.6~~3.7, 11.11 and ~~11.21~~ 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, (iv) Borrower, the Administrative ~~Agent~~ Agent, the Collateral Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s ~~Pro Rata Share of the Revolving Facility~~ Commitments and/or Loans as it then exists and shall not restrict an increase in the ~~Revolving Facility (or the aggregate~~ Commitments ~~pertaining thereto)~~and/or Loans, or in the granting Lender’s ~~rights and obligations hereunder~~Commitments and/or Loans, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, (vi) the holder of the participation interest shall abide by the confidentiality provisions set forth herein and (vivii) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (Aa) extend ~~any Amortization Date, any~~ the applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (Bb) reduce the rate of interest on the ~~Notes~~Loan, any fee or any other monetary amount payable to the Lenders, (Cc) reduce the amount of any installment of principal due ~~under~~ with respect to the ~~Notes~~Loan, (d) release any Subsidiary Guaranty, or (De) release ~~any Guarantor~~ all or substantially all of the Collateral from the Lien of the Collateral Documents, except if such release of Collateral occurs in connection with a Disposition permitted under Section 6.2 or grant of a purchase-money Lien of the type specified in clause (s) of the definition of “Permitted Encumbrances” (unless the holder of such Lien does not prohibit a subordinate Lien on the acquired property or assets, in which case the Collateral Agent shall subordinate its ~~Guaranty. (f) Borrower agrees that upon~~ Lien on such acquired property or assets in a manner acceptable to the ~~occurrence and during~~ holder of the ~~continuance~~ purchase-money Lien without the need for the consent of any ~~Event~~ Lender), in which case such release shall not require the consent of ~~Default~~any of the Lenders or of any holder of a participation interest in the Commitments and/or Loans. In the event that a participation has been granted pursuant to this Section 11.8(e) to a financial institution that is not a U.S. Person, ~~each~~ then, upon request made by Borrower or the Administrative Agent to the Lender which granted such participation, such Lender shall cause such participant financial institution to deliver the same documents and information to Borrower and the Administrative Agent as would be ~~entitled to assign its rights hereunder~~ required under Section 3.11(g) if such financial institution were a Lender. Each Lender that grants a participation shall, acting solely for this purpose as a non-fiduciary agent of 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 Loan or other obligations under the Loan ~~Documents~~Documents (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, ~~or grant~~ and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation ~~interests in its rights under~~ for all purposes of this Agreement ~~and the Loan Documents, to any Person, in whole or in any part thereof,~~ notwithstanding any ~~provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document~~ notice to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Revolving Loan Agreement (Viasat Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its~~ the Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if -------- not then a -81- Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and (if no Event of Default then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an ------ Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ the Commitment that is equivalent to less than $~~3,000,000,~~ 5,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share of the Commitment therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~its Note) to such assignee Lender, Notes evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share of the Commitment, and to the assigning Lender, Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share of the Commitment being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, ~~continue~~ ▇▇▇▇▇- nue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “"Register”") of the names and address of each of the Lenders and the Pro Rata Share of the ~~Commitments~~ Commitment held by each Lender, giving effect to each Commitment Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 ------------ giving effect ~~thereto~~there to. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata ~~Shares~~ Share of the ~~Revolving Facility~~ Commitment listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Pro Rata Share of the Commitment shall be effective, in each case unless and until an a Commitment Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the ~~Revolving Facility~~ Commitment shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the ~~Revolving Facility~~Commitment. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and ~~11.21~~ 11.22 but only --- --- ----- ----- to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share of the ~~Revolving Facility~~ Commitment as it then exists and shall not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~Commitment, or in the granting Lender~~’s rights and obligations hereunder~~'s Pro Rata Share of the Commitment, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those ---------- which (A) extend the Revolver Termination Date, any Amortization Date, ~~any applicable~~ the Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Subsidiary Guarantor from its ~~Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and~~ obligations under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender Subsidiary Guaranty or (iiE) ~~pledges described in~~ release any material Collateral from the ~~last sentence of subsection (a) above, no assignment shall be made without the approval~~ Lien of the ~~Administrative Agent~~Collateral Documents.

Appears in 1 contract

Sources: Revolving/Term Loan Agreement (Data Processing Resources Corp)

Appears in 1 contract

Sources: Credit Agreement (Flir Systems Inc)

Binding Effect; Assignment. (a) This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person not a party to this Agreement except (i) Section 7.6 shall be for the benefit of, and enforceable by, the D&O Indemnitees, (ii) Section 11.10 shall be for the benefit of, and enforceable by, the Nonparty Affiliates of the parties, (iii) Section 11.11 shall be for the benefit of, and enforceable by BBS, and (iv) the Financing Source Sections and this Section 11.9(a)(vi) shall be for the benefit of, and enforceable by, the Financing Sources and their respective Affiliates and Representatives. Without limiting the foregoing, each of the parties hereto acknowledges to each of the Financing Sources, as an explicit third party beneficiary, such Financing Source’s direct rights against such party under the Financing Source Sections and this Section 11.9(a), which are intended for the benefit of, and shall be enforceable by, each Financing Source, its successors, assigns, ~~except that Borrower~~ heirs and its legal representatives. (b) No assignment of this Agreement or of any rights or obligations hereunder may ~~not assign its rights hereunder~~ be made, directly or ~~thereunder~~ indirectly (by operation of law or ~~any interest herein~~ otherwise), by (i) the Company or ~~therein~~ Seller, without the prior written consent of ~~all~~ Buyer or (ii) Buyer, without the ~~Lenders. Each Lender represents that it is not acquiring its Note with a view~~ prior written consent of either the Company and Seller (prior to the ~~distribution thereof within~~ Closing) or the ~~meaning of~~ Seller (at and after the ~~Securities Act of 1933~~Closing), ~~as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)~~respectively. Any ~~Lender~~ attempted assignment without obtaining such required consent shall be null and void. Notwithstanding the foregoing, Buyer may ~~at any time pledge its Note or any other instrument evidencing its rights as a Lender under~~ assign this Agreement ~~to a Federal Reserve Bank,~~ (in whole but ~~no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b~~not in part) ~~From time to time following the Closing Date, each Lender may assign~~ to one or more ~~Eligible Assignees all or any portion~~ wholly owned Subsidiaries of ~~its rights and obligations under this Agreement (including all or a portion of its Commitment~~Buyer; provided, ~~the Advances owing to it and the Note or Notes held by it); provided that~~however, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) that no such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion relieve Buyer of its ~~rights and/or~~ obligations under this Agreement; provided, ~~however~~further, that ~~(i)~~ in no event shall Buyer be permitted to assign this Agreement to any Person to the extent such ~~Lender’s obligations~~ that, as a result of such assignment, any delay would occur with respect to any consent or approval of, or filing, declaration or registration with, any Governmental Authority that otherwise is required to be made under this Agreement ~~shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks~~ or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with ~~such Lender’s rights and obligations under this Agreement, (v)~~ the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantytransactions contemplated hereby. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Stock Purchase Agreement (Envision Healthcare Corp)

Appears in 1 contract

Sources: Credit Agreement (Ipalco Enterprises, Inc.)

Binding Effect; Assignment. (a) This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ Parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person not a party to this Agreement except (i) Section 6.9 shall be for the benefit of, ~~except that Borrower~~ and enforceable by, the Indemnitees, (ii) Section 10.10 shall be for the benefit of, and enforceable by, the Nonparty Affiliates of the Parties and (iii) for the rights of the former holders of shares of Company Common Stock, shares of Company Series A Preferred Stock, shares of Company Series B Preferred Stock, Company Warrants and Company Equity Awards to receive the consideration to which they are entitled pursuant to Article III. (b) No assignment of this Agreement or of any rights or obligations hereunder may ~~not assign its rights hereunder~~ be made, directly or ~~thereunder~~ indirectly (by operation of law or ~~any interest herein or therein~~ otherwise), by (i) the Company, without the prior written consent of ~~all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning~~ Parent, or (ii) any of the ~~Securities Act~~ Parent Parties, without the prior written consent of ~~1933~~the Company. Notwithstanding the foregoing, ~~as amended (subject to any requirement that disposition of such Note must be within~~ the ~~control of such Lender). Any Lender~~ Parent Parties may ~~at any time pledge its Note or any other instrument evidencing its rights as a Lender under~~ assign this Agreement ~~to a Federal Reserve Bank,~~ (in whole but ~~no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b~~not in part) ~~From time to time following the Closing Date, each Lender may assign~~ to one or more ~~Eligible Assignees all or any portion~~ wholly owned Subsidiaries of ~~its rights and obligations under this Agreement (including all or a portion of its Commitment~~Parent; provided, ~~the Advances owing to it and the Note or Notes held by it); provided that~~however, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) that no such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of relieve any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion Parent Party of its ~~rights and/or~~ respective obligations under this Agreement; provided, ~~however~~further, that ~~(i) such Lender’s obligations under~~ in no event shall any Parent Party be permitted to assign this Agreement ~~shall remain unchanged, (ii) such Lender shall remain solely responsible~~ to ~~the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for~~ any ~~purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only~~ Person to the extent ~~that the cost~~ that, as a result of such ~~benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation~~assignment, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) ~~extend~~ any ~~Amortization Date~~additional consent or approval of, or filing, declaration or registration with, any ~~applicable Maturity Date or any other date upon which any payment of money is due~~ Governmental Authority would be required to consummate the ~~Lenders~~transactions contemplated hereby, (B) ~~reduce the rate of interest on the Notes~~any delay would occur with respect to any consent or approval of, or filing, declaration or registration with, any ~~fee~~ Governmental Authority that otherwise is required to be made under this Agreement or ~~any other monetary amount payable to~~ in connection with the ~~Lenders,~~ transactions contemplated hereby or (C) ~~reduce~~ any incremental withholding or other Tax is reasonably expected to be incurred as a result of such assignment; provided, further, that the ~~amount~~ effect of any ~~installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance~~ such assignment shall not be taken into account for purposes of any ~~Event~~ determination that there has occurred a breach of ~~Default~~any representation, ~~each Lender~~ warranty, covenant or agreement of the Company or a Company Material Adverse Effect. Any attempted assignment not in compliance with this Section 10.9(b) shall be ~~entitled to assign its rights hereunder~~ null and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agentvoid.

Appears in 1 contract

Sources: Merger Agreement (NeueHealth, Inc.)

Binding Effect; Assignment. (a) This Agreement shall become effective when it shall have been executed by the Borrower and the ~~other Loan Documents to which Borrower is a Party will~~ Administrative Agent and when the Administrative Agent shall have been notified by each Bank that such Bank has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Administrative ~~Agent,~~ Agent and each ~~of the Lenders,~~ Bank and their respective successors and assigns, except that the Borrower ~~may~~ shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning~~ of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgeBanks. (b) ~~From time~~ Any Bank may assign, participate or otherwise transfer all or any part of, or interest in, such Bank’s rights and obligations hereunder and under the Notes issued to ~~time following the Closing Date, each Lender may assign~~ it hereunder to one or more ~~Eligible Assignees~~ banks or other entities; provided that (i) in the case of any assignment, participation or other transfer to a Person that is not a Bank, an Affiliate of a Bank or an Approved Fund, the Borrower (except during the continuance of an Event of Default) and the Administrative Agent, in each case whose consent shall not be unreasonably withheld or delayed, shall have expressly agreed in writing; provided that a material increase in counterparty risk shall be reasonable grounds (although not exclusive grounds) for the withholding of such consent; and (ii) in the case of any assignment in part, the amount of the Commitment and Loans being assigned pursuant to such assignment shall in no event be less than $5,000,000 (or a lesser amount approved by the Administrative Agent). Upon the effectiveness of any such assignment (but not in the event of any such participation or other transfer) such assignee shall be a Bank hereunder and shall have all the rights and benefits thereof. However, unless and until the conditions for the Administrative Agent’s treating such assignee as holder pursuant to clause (c) below shall have been satisfied, such assignee shall not be entitled to exercise the rights of a Bank under this Agreement and the Administrative Agent shall not be obligated to make payment of any amount to which such assignee may become entitled hereunder other than to the Bank which assigned its rights to such assignee. Nothing contained herein shall impair the ability of any Bank, in its discretion, to agree, solely as between itself and its assignees, participants and other transferees, upon the manner in which such Bank shall exercise its rights under this Agreement and the Notes made to such Bank. The assignee, if it shall not already be a Bank, 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 and its affiliates and their 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. (c) In order to effect any assignment permitted hereunder by a Bank of all or any portion of its Commitment or Loans hereunder, the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined below), an agreement substantially in the form of Exhibit 9.06 hereto (an “Assignment and Acceptance”), together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 payable by the assignor or assignee. Upon such execution, delivery, acceptance and recording and delivery to the Administrative Agent of such assignee’s Administrative Questionnaire, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Bank’s rights and obligations under this ~~Agreement (including all or~~ Agreement, such Bank shall cease to be a ~~portion of its Commitment, the Advances owing~~ party hereto but shall continue to ~~it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall~~ be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished entitled to the ~~Administrative Agent as hereinbelow provided~~benefits of Sections 3.10, ~~(iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender~~ 3.12 and 9.04 for any events or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) circumstances occurring or existing before the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderassignment). (cd) By executing and delivering an Assignment and Acceptance, the ~~Eligible Assignee~~ Bank assignor thereunder ~~acknowledges~~ and ~~agrees that~~the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than ~~the representation~~ as provided in such Assignment and ~~warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim~~Acceptance, ~~the~~ such assigning ~~Lender has made~~ 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~~ genuineness, sufficiency or ~~sufficiency~~ value of this Agreement or any other ~~Loan Document~~instrument or document furnished pursuant hereto; (ii) ~~the~~ such assigning ~~Lender has made~~ 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 ~~the Obligations~~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 ~~most recent~~ financial statements referred to in Section 5.01(f) (and any later statements delivered pursuant to Section ~~7.1~~ 6.01(f)(ii)) 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) it such assignee will, independently and without reliance upon the Administrative ~~Agent~~ Agent, such assigning Bank or any ~~Lender~~ 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) it 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 ~~this Agreement~~the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Bank. (de) The Administrative Agent shall maintain at ~~the Administrative Agent’s Office~~ its address referred to in Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount (and stated interest on) of the Loans owing to, each Bank from time to time (the “Register”~~) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance~~). The entries in the Register shall be ~~available during normal business hours~~ conclusive and binding for ~~inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee~~all purposes, absent manifest error, and ~~receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee,~~ the ~~Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto.~~ Borrower, the Administrative Agent and the ~~Lenders~~ Banks shall ~~deem and~~ treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each ~~case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and~~ Person whose name is recorded in the Register as ~~provided above~~a Bank hereunder for all purposes of this Agreement. ~~Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility~~ The Register shall be ~~owed to~~ available for inspection by the ~~Lender listed in the Register as the owner thereof,~~ Borrower or any Bank at any reasonable time and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyreasonable prior notice. (f) ~~Borrower agrees that upon~~ Notwithstanding anything contained herein to the ~~occurrence and during the continuance of any Event of Default~~contrary, each ~~Lender shall be entitled to assign~~ Bank may pledge its ~~rights hereunder~~ right, title and ~~under the Loan Documents, or grant participation interests in its rights~~ interest under this Agreement and any Note made to it to the ~~Loan Documents~~Board of Governors of the Federal Reserve System, ~~to any Person, in whole~~ or ~~in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in~~ any other ~~Loan Document~~ Governmental Authority, as security for financial accommodations or privileges being provided or extended to ~~the contrary, except that, other than (i) assignments~~ such Bank by ~~a Lender to an Affiliate of~~ such ~~Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~Governmental Authority.

Appears in 1 contract

Sources: 364 Day Credit Agreement (Baxter International Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or ------ thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge any of its ~~Note~~ Notes or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its Commitment,~~ the ~~Advances owing to it and the Note or Notes held by it)~~Commitments; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not -------- then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and (if no Event of Default then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitments Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an ------ Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitments of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s~~ the Commitments ~~and/or Advances owing to such assigning Lender~~ that is equivalent to less than $~~3,000,000,~~ 10,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitments Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitments Assignment and Acceptance. Upon the effective date of such Commitments Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments ~~and/or Advances~~ therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~its Note) to such assignee Lender, Notes evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share of the Commitments, and to the assigning Lender, Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an a Commitments Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share of the Commitments being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other --- documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitments Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Commitments Assignment and Acceptance delivered to it and a register (the “"Register”") of the ~~names~~ name and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Commitments Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitments Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect ------------ thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata ~~Shares~~ Share of the ~~Revolving Facility~~ Commitments listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Pro Rata Share of the Commitments shall be effective, in each case unless and until an a Commitments Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the ~~Revolving Facility~~ Commitments shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the ~~Revolving Facility~~Commitments. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Pro Rata Share of the Commitments; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.'s -------- -------

Appears in 1 contract

Sources: Revolving Loan Agreement (Callaway Golf Co /Ca)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the~~ Lenders and Administrative ~~Agent, each of the Lenders,~~ Agent and their respective successors and assigns, except ~~that~~ that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to~~ Lenders and any ~~requirement that disposition of~~ such ~~Note must~~ attempted assignment shall be ~~within the control of such Lender)~~void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release ~~that~~ each such Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Commitment and/or Extensions of ~~its Commitment, the Advances owing to it and the Note or Notes held by it)~~Credit; provided ~~that, subject to subsection (f) below,~~ that (i) such ~~Eligible Assignee~~assignment, if not ~~then~~ to a Lender or an Affiliate of the assigning Lender, shall be ~~approved~~ consented to by Borrower at all times other than during the existence of a Default or Event of Default and by Administrative Agent and Issuing Lender (which approval of Borrower ~~(neither of which approvals~~ shall not be unreasonably ~~withheld or delayed~~withheld), (ii) ~~such assignment shall be evidenced by an Assignment and Acceptance,~~ a copy of ~~which~~ a duly signed and completed Assignment and Acceptance shall be ~~furnished~~ delivered to ~~the~~ Administrative ~~Agent as hereinbelow provided~~Agent, (iii) except in the case of an assignment (A) to an Affiliate of the assigning ~~Lender,~~ Lender or to another Lender or (B) of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the ~~assignment~~ portion of the Commitment assigned shall not ~~assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to~~ be less than ~~$3,000,000~~the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Assignment and Acceptance. Upon any required consent by Administrative Agent, Issuing Lender and Borrower to such assignment and payment of the ~~effective date of such Assignment and Acceptance~~requisite fee described below, the ~~Eligible Assignee~~ assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~any Note) to such assignee Lender, one or more Notes evidencing ~~that~~ such assignee Lender’s ~~Commitments and/or Advances~~Loans, and to the assigning ~~Lender~~Lender if requested, one or more Notes evidencing ~~the remaining balance of the Commitments and/or Advances~~ Loans under any Commitment retained by the assigning Lender. Administrative Agent’s consent to any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. For purposes hereof, each mutual fund that is an Affiliate of a Lender shall be deemed to be a single Eligible Assignee, whether or not such fund is managed by the same fund manager as other mutual funds that are Affiliates of the same Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and ~~Acceptance executed by any Lender and an Eligible Assignee~~Acceptance, and receipt of an assignment fee of $3,500 (unless such fee is waived by the Administrative Agent) from such ~~Lender or~~ Eligible ~~Assignee~~Assignee (including in the case of assignments to Affiliates of assigning Lenders), ~~the~~ Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and ~~the~~ Lenders a revised Schedule ~~1.1~~ 10.2 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (ed) Each such Lender may from time to ~~time~~ time, without the consent of any other Person, grant participations to one or more ~~banks or~~ other ~~financial institutions in or to~~ Person (including another Lender) of all or a any portion of its ~~rights and/or obligations under this Agreement~~Pro Rata Share of its Commitment or Extensions of Credit; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) ~~the~~ participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6, 11.11 and 11.21~~ Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation) and subject to Sections 10.5 and 10.6, (iv) Borrower, ~~the~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation ~~interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and~~ agreement shall not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~combined Commitments, or in ~~the~~ granting Lender’s ~~rights and obligations hereunder~~Pro Rata Share, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, and (viiv) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan ~~Documents other than those~~ Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter which (A) ~~extend any Amortization Date, any applicable~~ extends the Maturity Date as to such participant or any other date upon which any payment of money is due to ~~the Lenders~~such participant, (B) ~~reduce~~ reduces the rate of interest ~~on the Notes~~owing to such participant, any fee or any other monetary amount ~~payable~~ owing to ~~the Lenders~~such participant, or (C) ~~reduce~~ reduces the amount of any installment of principal ~~due under~~ owing to such participant. Any Lender that sells a participation to any Person that is a “foreign corporation, partnership or trust” within the ~~Notes, or (D) release any Guarantor from~~ meaning of the Code shall include in its ~~Guaranty. (f)~~ participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.22 as if such Person were a Lender and provide that Administrative Agent and Borrower ~~agrees that upon the occurrence and during the continuance of any Event of Default, each Lender~~ shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate third party beneficiaries of such ~~Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~covenant.

Appears in 1 contract

Sources: Credit Agreement (Wireless Facilities Inc)

Binding Effect; Assignment. ~~(a)~~ 12.8.1 This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the Administrative Agent~~Agents, each of ~~the~~ Credit Facility Lenders, and their respective permitted successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the~~ Lenders. Each Credit Facility Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Credit Facility Lender may at any time pledge its Note or any other instrument evidencing its rights as a ~~Lender~~ lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that ~~Lender~~ lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Credit Facility Lender hereunder absent foreclosure of such pledge. ~~(b)~~ 12.8.2 From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its~~ the Revolving Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by ~~the~~ Administrative Agent ~~and Borrower (neither~~ and, provided no Default or Event of Default then exists, Borrower, which ~~approvals~~ approval(s) shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed), ; (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to ~~the~~ Administrative Agent as hereinbelow provided, ; (iii) except in the case of an assignment (a) to an Affiliate of the assigning ~~Lender,~~ Lender or to another Lender or (b) of the entire remaining ~~rights and obligations~~ Revolving Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ the Revolving Commitment that is equivalent to less than $~~3,000,000, and~~ 5,000,000.00; (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) ~~Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Commitment Assignment and Acceptance; and (v) such Eligible Assignee shall execute an Alternative Dispute Resolution Agreement, in form and substance satisfactory to Administrative Agent. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share of the Revolving Commitment therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~its Note(s)) to such assignee Lender, ~~Notes~~ Note(s) evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving ~~Facility as it then exists~~ Commitment, and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the ~~Lenders~~assigning Lender, (BNote(s) ~~reduce~~ evidencing the ~~rate of interest on~~ Pro Rata Share retained by the ~~Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty~~assigning Lender. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Willis Lease Finance Corp)

Binding Effect; Assignment. (a) This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of the Borrower, the Administrative ~~Agent,~~ Agent and each ~~of the Lenders~~Lender, and their respective successors and permitted assigns, except that the Borrower ~~may~~ shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of ~~all~~ the Administrative Agent and the Lenders~~. Each Lender represents that it is not acquiring its Note with a view to~~ , and any assignment by the ~~distribution thereof within the meaning~~ Borrower in violation of ~~the Securities Act of 1933, as amended~~ this Section 9.8 shall be null and void. (~~subject to any requirement that disposition of such Note must be within the control of such Lender).~~ b) Any Lender may at any ~~time pledge its Note~~ time, without the consent of the Administrative Agent, assign all or any ~~other instrument evidencing~~ portion of its rights ~~as a Lender~~ under this Agreement and any Loan Note to a Federal Reserve Bank~~, but~~ ; provided that no such assignment or pledge shall release ~~that~~ the transferor Lender from its obligations ~~hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge~~hereunder. (bc) ~~From time~~ Subject to ~~time following~~ the ~~Closing Date~~terms of the Acknowledgment Agreement, each Lender may assign to one or more ~~Eligible Assignees~~ banks or other entities all or any part or portion of, or may grant participations to one or more banks or other entities in all or any part or portion of its rights and obligations ~~under this Agreement~~ hereunder (including ~~all~~ its Loan Notes or ~~a portion~~ its Advances) with the prior written consent of ~~its Commitment~~(x) the Borrower (such consent not to be unreasonably withheld, conditioned, or delayed), provided that the ~~Advances owing~~ 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, and provided further that no consent of the ~~Note or Notes held by it); provided that, subject~~ Borrower shall be required for an assignment to ~~subsection (f) below, (i) such Eligible Assignee, if not then~~ a Lender or an Affiliate of a Lender or, if an Event of Default has occurred and is continuing and (y) the ~~assigning Lender~~Administrative Agent; provided that (i) each party to such assignment shall execute and deliver an Assignment and Assumption to the Administrative Agent, and (ii) shall be ~~approved by~~ to (x) a bank, other financial institution or lender which is reasonably acceptable to the Administrative Agent, (y) a “qualified institutional buyer”, as defined in Rule 144A under the Securities Act of 1933, as amended, reasonably acceptable to the Administrative Agent or (z) any other Person (other than the Borrower a natural Person or a holding company, investment vehicle or trust for, or owned and ~~Borrower~~ operated by or for the primary benefit of natural persons or any Affiliates of the foregoing) reasonably satisfactory to the Administrative Agent. Upon, and to the extent of, any assignment (~~neither~~ unless otherwise stated therein) made by any Lender hereunder, the assignee or purchaser of ~~which approvals shall be unreasonably withheld or delayed), (ii)~~ such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender hereunder for all purposes of this ~~Agreement~~Agreement and shall have all the rights, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights benefits and obligations ~~hereunder being assigned thereby free and clear of any adverse claim,~~ (including the ~~assigning Lender has made no representation or warranty and assumes no responsibility with respect~~ obligation to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered provide documentation pursuant to Section ~~7.1 and such other documents and information~~ 2.14(g)) of a Lender hereunder. The Administrative Agent, acting solely for this purpose as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all an agent of the ~~obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent~~ Borrower, shall maintain at ~~the Administrative Agent’s Office a copy~~ one of ~~each Assignment and Acceptance delivered to it and~~ its offices a register (the “Register”) for the recordation of the names and ~~address of each~~ addresses of the Lenders and ~~the Pro Rata Share~~ outstanding principal amounts (and accrued interest) of the ~~Commitments held by each Lender, giving effect~~ Advances owing to each ~~Assignment~~ Lender pursuant to the terms hereof from time to time and ~~Acceptance~~any assignment of outstanding Advances. The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive absent manifest error, and ~~receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee,~~ the ~~Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto.~~ Borrower, the Administrative Agent and the Lenders shall ~~deem and~~ treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each ~~case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and~~ Person whose name is recorded in the Register ~~as provided above. Prior to such recordation, all amounts owed with respect~~ pursuant to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be ~~conclusive~~ available for inspection by the Borrower and ~~binding on~~ any ~~subsequent holder~~Lender, ~~assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may~~ at any reasonable time and from time to time ~~grant participations~~ upon reasonable prior notice. Any Lender may sell participation interests in its Advances and obligations hereunder (each such recipient of a participation a “Participant”); provided that after giving effect to ~~one or more banks or other financial institutions in or to all or a portion~~ the sale of ~~its rights and/or obligations under this Agreement; provided~~such participation, ~~however, that (i)~~ such ~~Lender~~▇▇▇▇▇▇’s obligations ~~under this Agreement~~ hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, ~~(ii)~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ~~(iii) the participating banks or other financial institutions shall not be a~~ all amounts payable to such Lender hereunder ~~for~~ and all rights to consent to any ~~purpose except,~~ waiver hereunder or amendment hereof shall be determined as if ~~the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of~~ such ~~benefits to Borrower does~~ ▇▇▇▇▇▇ had not ~~exceed the cost which Borrower would have incurred in respect of the Lender granting~~ sold such participation ~~absent~~ interest, and the ~~participation, (iv) Borrower,~~ Borrower and the Administrative Agent ~~and the other Lenders~~ shall continue to deal solely and directly with such Lender and not be obligated to deal with such 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 outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction 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 Advances or its other obligations under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such Advances or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Proposed Treasury Regulations Section 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. For the avoidance of doubt, the Administrative Agent shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.14(g) (it being understood that the documentation required under Section 2.14(g) shall be delivered to the participating Lender)), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.14 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. Notwithstanding any other provision of this Agreement to the contrary, a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to (i) a security trustee in connection with the funding by such ~~Lender’s rights and~~ Lender of Advances or (ii) a Federal Reserve Bank to secure obligations to such Federal Reserve Bank, in each case without the consent of the Borrower; provided that no such pledge or grant shall release such Lender from its obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (UWM Holdings Corp)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the~~ Administrative Agent, ~~each of the Lenders,~~ Lenders and their respective successors and assigns, except ~~that~~ that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to~~ Lenders and any ~~requirement that disposition of~~ such ~~Note must~~ attempted assignment shall be ~~within the control of such Lender)~~void. Any Lender may at any time pledge its ~~Note~~ Notes or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve ~~Bank~~Lender, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve ~~Bank~~ Lender the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender ~~may~~ may, at its sole cost and expense, assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of its ~~Commitment, the Advances owing to it and the Note or Notes held by it)~~Commitments and/or Extensions of Credit; provided ~~that, subject to subsection (f) below,~~ that (i) such ~~Eligible Assignee~~assignment, if not ~~then~~ to a Lender or an Affiliate of the -------- assigning Lender, ~~shall~~ must be ~~approved~~ consented to by Borrower at all times other than during the existence of a Default or Event of Default and Administrative Agent and ~~Borrower~~ Issuing Lender (~~neither of~~ which approvals shall not be unreasonably withheld or delayed), (ii) ~~such assignment shall be evidenced by an Assignment and Acceptance,~~ a copy of ~~which~~ a duly signed and completed Notice of Assignment and Acceptance shall be ~~furnished~~ delivered to ~~the~~ Administrative ~~Agent as hereinbelow provided~~Agent, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitments of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is~~ Pro Rata Share equivalent to less than ~~$3,000,000~~the Minimum Amount therefor, (iv) each assignment shall be of a constant, and not a varying, portion of such Lender's Revolving Commitment and Term Commitment, and (ivv) the effective date of any such assignment shall be as specified in the Notice of Assignment and Acceptance, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Notice of Assignment and Acceptance. Upon ~~the effective date~~ acceptance by Administrative Agent of such Notice of Assignment and ~~Acceptance~~Acceptance and consent thereto by Administrative Agent, Issuing Lender and Borrower and payment of the requisite fee described below, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower of ~~such Lender’s~~ any Notes) to such assignee Lender, one or more Notes evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share, and to the assigning ~~Lender~~Lender if requested, one or more Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. Administrative Agent's consent to and acceptance of any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Notice of Assignment and ~~Acceptance executed by any Lender and an Eligible Assignee~~Acceptance, and receipt of an assignment fee of $3,500 from such ~~Lender or~~ Eligible ~~Assignee~~Assignee (including Affiliates of assigning Lenders), ~~the~~ Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and ~~the~~ Lenders a revised Schedule ~~1.1~~ 10.02 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.-------------- (ed) Each Lender ~~may~~ may, at its sole cost and expense, from time to time grant participations to one or more ~~banks or~~ other ~~financial institutions in or to~~ Person (including another Lender) all or a any portion of its ~~rights~~ Pro Rata Share of its Commitments and/or ~~obligations under this Agreement~~Extensions of Credit; provided, however, that (i) such Lender’s 's obligations under this -------- ------- Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6, 11.11 and 11.21~~ Section 3 (but only to the extent that the cost of --------- such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation) and subject to Sections 10.05 and 10.06, (iv) Borrower, ~~the~~ Administrative Agent and the other ------------------------ Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation ~~interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and~~ shall not restrict an increase in the ~~Revolving Facility (or the aggregate~~ Commitments ~~pertaining thereto),~~ or in the granting Lender~~’s rights and obligations hereunder~~'s Pro Rata Share, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan ~~Documents other than those~~ Documents; provided, however, that the assigning Lender -------- ------- may, in any agreement with a participant, give such participant the right to consent to any matter which (A) ~~extend any Amortization Date, any applicable~~ extends the Maturity Date as to such participant or any other date upon which any payment of money is due to ~~the Lenders~~such participant, (B) ~~reduce~~ reduces the rate of ~~interest on the Notes~~interest, any fee or any other monetary amount ~~payable~~ owing to ~~the Lenders~~such participant, (C) ~~reduce~~ reduces the amount of any installment of principal ~~due under the Notes,~~ owing to such participant or (D) ~~release~~ releases any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval material portion of the ~~Administrative Agent~~Collateral.

Appears in 1 contract

Sources: Credit Agreement (California Pizza Kitchen Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the~~ Administrative Agent, ~~each of the Lenders,~~ Lenders and their respective successors and assigns, except ~~that~~ that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to~~ Lenders and any ~~requirement that disposition of~~ such ~~Note must~~ attempted assignment shall be ~~within the control of such Lender)~~void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release ~~that~~ such Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Commitment and/or Extensions of ~~its Commitment, the Advances owing to it and the Note or Notes held by it)~~Credit; provided ~~that, subject to subsection (f) below,~~ that (i) such ~~Eligible Assignee~~assignment, if not ~~then~~ to a Lender or an Affiliate of the assigning Lender, shall be ~~approved~~ consented to by Borrower at all times other than during the existence of a Default or Event of Default and by Administrative ~~Agent~~ Agent, Issuing Lender and Swing Line Lender (which approval of Borrower ~~(neither of which approvals~~ shall not be unreasonably withheld or delayed), (ii) ~~such assignment shall be evidenced by an Assignment and Acceptance,~~ a copy of ~~which~~ a duly signed and completed Assignment and Acceptance shall be ~~furnished~~ delivered to ~~the~~ Administrative ~~Agent as hereinbelow provided~~Agent, (iii) except in the case of an assignment (A) to an Affiliate of the assigning ~~Lender,~~ Lender or to another Lender or (B) of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the ~~assignment~~ portion of the Commitment assigned shall not ~~assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to~~ be less than ~~$3,000,000~~the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Assignment and Acceptance. Upon obtaining any consent required as set forth in the ~~effective date~~ prior sentence, any forms required by Section 10.21 and payment of ~~such Assignment and Acceptance~~the requisite fee described below, the ~~Eligible Assignee~~ assignee named therein shall be a Lender for all purposes of this ~~Agreement, with the Commitments and/or Advances therein set forth and,~~ Agreement to the extent of the Assigned Interest (as defined in such ~~Commitments and/or Advances~~Assignment and Acceptance), and the assigning Lender shall be released from ~~its~~ any further obligations under this ~~Agreement~~Agreement to the extent of such Assigned Interest. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~any Note) to such assignee Lender, one or more Notes evidencing ~~that~~ such assignee Lender~~’s Commitments and/or Advances~~'s Loans, and to the assigning Lender, if requested, one or more Notes evidencing ~~the remaining balance of the Commitments and/or Advances~~ Loans under any Commitment retained by the assigning Lender. Administrative Agent's consent to any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. Administrative Agent shall record the information contained in the Assignment and Acceptance in the Register. For purposes hereof, each mutual fund that is an Affiliate of a Lender shall be deemed to be a single Eligible Assignee, whether or not such fund is managed by the same fund manager as other mutual funds that are Affiliates of the same Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and ~~Acceptance executed by any Lender and an Eligible Assignee~~Acceptance, and receipt of an assignment fee of $3,500 from such Eligible Assignee and/or such assigning Lender ~~or Eligible Assignee~~(including in the case of assignments to Affiliates of assigning Lenders), ~~the~~ Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and ~~the~~ Lenders a revised Schedule ~~1.1~~ 10.02 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (ed) Each Lender may from time to ~~time~~ time, without the consent of any other Person, grant participations to one or more ~~banks or~~ other ~~financial institutions in or to~~ Person (including another Lender) all or a any portion of its ~~rights~~ Pro Rata Share of its Commitment and/or ~~obligations under this Agreement~~Extensions of Credit; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6, 11.11 and 11.21~~ Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation) and subject to Sections 10.05 and 10.06, (iv) Borrower, ~~the~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation ~~interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and~~ agreement shall not restrict an increase in the ~~Revolving Facility (or the aggregate~~ combined Commitments ~~pertaining thereto),~~ or in the granting Lender~~’s rights and obligations hereunder~~'s Commitment or Pro Rata Share, so long as the amount of the participation interest is not ~~affected thereby~~ increased, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan ~~Documents other than those~~ Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter which (A) ~~extend any Amortization Date, any applicable~~ extends the Maturity Date as to such participant or any other date upon which any payment of money is due to ~~the Lenders~~such participant, (B) ~~reduce~~ reduces the rate of interest ~~on the Notes~~owing to such participant, any fee or any other monetary amount ~~payable~~ owing to ~~the Lenders~~such participant, or (C) ~~reduce~~ reduces the amount of any installment of principal ~~due under~~ owing to such participant. Any Lender that sells a participation to any Person that is a "foreign corporation, partnership or trust" within the ~~Notes, or (D) release any Guarantor from~~ meaning of the Code shall include in its ~~Guaranty. (f)~~ participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.21 as if such Person were a Lender and provide that Administrative Agent and Borrower ~~agrees that upon the occurrence and during the continuance of any Event of Default, each Lender~~ shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate third party beneficiaries of such ~~Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~covenant.

Appears in 1 contract

Sources: Credit Agreement (Esco Technologies Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which ~~Borrower~~ the Company is a ~~Party~~ party will be binding upon and inure to the benefit of ~~Borrower~~the Company, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that ~~Borrower~~ (i) the Company may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders~~. Each~~ , and (ii) no Lender ~~represents that it is not acquiring~~ may assign or transfer its ~~Note~~ rights or obligations hereunder except in accordance with ~~a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)~~this Section. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve ~~Bank~~Lender, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve ~~Bank~~ Lender the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more ~~Eligible Assignees~~ assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)~~Pro Rata Share; provided ~~that, subject to subsection (f) below~~that so long as no Default or Event of Default exists, (i) such assignee is an Eligible Assignee, and (ii) if such assignee is not then a Lender, an Affiliate of the assigning Lender or a CLO administered or managed by the assigning Lender or an Affiliate of the assigning Lender, shall be approved by each of the Administrative Agent and ~~Borrower~~ the Company (neither of which approvals shall be unreasonably withheld or delayed; it being understood that it shall not be deemed unreasonable to withhold such consent if based solely on the desire to avoid the payment of additional costs or taxes), ~~(ii) such assignment shall be evidenced by an Assignment~~ and ~~Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided,~~ (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to a CLO administered or managed by the assigning Lender or an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement,~~ Lender; the assignment shall not assign a ~~portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that~~ Pro Rata Share which is equivalent to less than ~~$3,000,000,~~ the Minimum Amount therefor. A copy of a Notice of Assignment and ~~(iv)~~ Acceptance shall be delivered to the Administrative Agent with respect to any assignment. The effective date of any such assignment shall be as specified in the Notice of Assignment and Acceptance, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date the Administrative Agent has received the Notice of Assignment and Acceptance. Upon acceptance by the ~~effective date~~ Administrative Agent of such Notice Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. ~~Borrower~~ The Company agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to ~~Borrower~~ the Company of ~~such Lender’s Notes~~any Note) to such assignee Lender, one or more Notes evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share, and to the assigning ~~Lender~~Lender if requested, one or more Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an a Notice of Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ the Company or the performance by ~~Borrower~~ the Company of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section ~~7.1~~ 6.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Notice of Assignment and ~~Acceptance executed by any Lender and an Eligible Assignee~~Acceptance, and receipt of an assignment fee of $3,500 from such ~~Lender or~~ Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to ~~Borrower~~ the Company and the Lenders a revised Schedule ~~1.1~~ 10.02 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (including another Lender) in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Pro Rata Share; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6, 11.11 and 11.21~~ Article III but only to the extent that the cost of such benefits to ~~Borrower~~ the Company does not exceed the cost which ~~Borrower~~ the Company would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, (iv) ~~Borrower~~the Company, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation ~~interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and~~ shall not restrict an increase in the ~~Revolving Facility (or the aggregate~~ Commitments ~~pertaining thereto),~~ or in the granting Lender~~’s rights and obligations hereunder~~'s Pro Rata Share, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend ~~any Amortization Date, any applicable~~ the Maturity Date as to such participant or any other date upon which any payment of money is due to ~~the Lenders~~such participant, (B) reduce the rate of interest ~~on the Notes~~owing to such participant, any fee or any other monetary amount ~~payable~~ owing to ~~the Lenders,~~ such participant or (C) reduce the amount of any installment of principal ~~due under the Notes, or~~ owing to such participant. A Lender granting a participation in accordance with this clause (De) ~~release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender~~ shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document give Requisite Notice to the ~~contrary, except that, other~~ Company on by executing and delivering a Notice of Participation no later than ~~(i) assignments by a Lender to an Affiliate~~ 5 Business Days after the effective date of such ~~Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~participation.

Appears in 1 contract

Sources: Credit Agreement (Science Applications International Corp)

Binding Effect; Assignment. ~~(a)~~ This Agreement and the other Loan -------------------------- Documents ~~to which Borrower is a Party will~~ shall be binding upon and shall inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties hereto and thereto and their respective successors and assigns, except that a ------ Borrower and/or its Affiliates may not assign ~~its~~ their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the ~~Lenders~~Banks. Each ~~Lender~~ Bank shall have the right in accordance with this Section to sell, assign, pledge or transfer all or any portion of its rights hereunder or under the Note of that Bank and to grant any participation or other interest herein or therein; provided that no such sale, assignment, pledge, transfer or -------- participation grant shall make any assignment which would have the effect of result in requiring registration under the Securities Act of 1933, as amended, or qualification under any state securities laws. Each Bank represents that it is not acquiring ~~its Note~~ the Notes with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of ~~such Note~~ the Notes must be within the control of such ~~Lender~~Bank). Any ~~Lender~~ Bank may at assign, from time to time, any ~~time pledge its Note~~ or ~~any other instrument evidencing~~ all of its rights ~~as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its~~ and obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees and all or any portion of its ~~rights and obligations under this Agreement~~ share of the Commitments to an Affiliate of that Bank or, with the approval of the Company (~~including all or a portion of its Commitment~~which approval will not be unreasonably withheld), to any other financial institution acceptable to the ~~Advances owing to it and the Note or Notes held by it); provided that~~Administrative Agent, subject to ~~subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate~~ the assumption by the assignee of the ~~assigning Lender~~share of the Commitments so assigned. Any assignment shall also require the consent of the Issuing Bank, ~~shall be approved by the Administrative Agent and Borrower (neither of which approvals shall~~ such consent not to be unreasonably ~~withheld or delayed), (ii)~~ withheld. Any such assignment shall be evidenced by an Assignment Agreement substantially in the form of Exhibit J, executed by each of the parties and ~~Acceptance,~~ a copy of which shall be ~~furnished~~ delivered to the Administrative ~~Agent as hereinbelow provided~~Agent. Upon such execution and delivery, from and after the effective date specified in each Assignment Agreement (~~iii~~y) ~~except~~ the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement, have the rights and obligations of a Bank hereunder and (z) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment Agreement, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an ~~assignment to~~ Assignment Agreement covering all or the remaining portion of an ~~Affiliate of the~~ assigning ~~Lender, to another Lender or of the entire remaining~~ Bank's rights and obligations ~~of the assigning Lender~~ under this Agreement, ~~the assignment~~ such Bank shall ~~not assign a portion of such assigning Lender’s Commitments and/or Advances owing~~ cease to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a ~~Lender for all purposes~~ party hereto). The Pro Rata Share of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance each Bank of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder ~~being assigned thereby free and clear of any adverse claim, the assigning Lender has made no representation or warranty and assumes no responsibility with respect~~ shall be modified to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and reflect the Pro Rata Share of the ~~Commitments held by each Lender~~Commitment of such assignee and, ~~giving effect~~ if any such assignment occurs while any Loan is outstanding new Notes shall, upon surrender of the assigning Bank's Notes, be issued to ~~each Assignment~~ such assignee and ~~Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice~~ to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, assigning Bank as necessary to reflect the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable new Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee Commitments of the ~~corresponding Pro Rata Share~~ Bank and of ~~the Revolving Facility. (e) Each Lender~~ assignee. Notwithstanding any other provision set forth in this Agreement, any Bank may ~~from time to time grant participations to one~~ assign or ~~more banks~~ pledge, as collateral or ~~other financial institutions in or to~~ otherwise, all or a any portion of its rights ~~and/or obligations~~ under this ~~Agreement~~Agreement (including without limitation, rights to payments of principal and/or interest under the Notes held by it), but not its obligations, to any Federal Reserve Bank or any Affiliate in order that such Affiliate may assign or pledge such rights to any Federal Reserve Bank, in each case, without notice to or consent from any Borrower or the Administrative Agent; provided, however, that such -------- ------- Federal Reserve Bank or Affiliate shall not, by reason of such assignment, become a "Bank" hereunder for any purpose whatsoever and any such Bank shall not be released from any of its obligations hereunder as a result of such assignment or pledge. Any Bank may grant, from time to time, a participation interest in the rights of that Bank under its Note and this Agreement to any financial institution, without notice to or the approval of the Administrative Agent or the Borrowers. The grant of such a participation interest shall be on such terms as the granting Bank determines are appropriate, provided only that (ia) such ~~Lender’s~~ Bank's rights and obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, (iib) such ~~Lender~~ Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (~~iii~~c) such Bank shall remain the holder of any such Note for all purposes of the Agreement, (d) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) BorrowerBorrowers, the Administrative Agent and the other ~~Lenders~~ Banks shall continue to deal solely and directly with such ~~Lender~~ Bank in connection with such ~~Lender’s~~ Bank's rights and obligations under this Agreement, (ve) ~~the~~ no participant under any such participation ~~interest~~ shall ~~be expressed as a percentage~~ have any right to approve any amendment or waiver of ~~the granting Lender’s Pro Rata Share~~ any provision of ~~the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)~~any Loan Document, or in any consent to any departure by any Borrower therefrom, except to the ~~granting Lender’s rights and obligations~~ extent that such amendment, waiver or consent would reduce the principal of, or interest (other than increased interest following default pursuant to Section 3.9) on, the Notes or any fees or other amounts payable hereunder, ~~so long as~~ in each case to the ~~amount of~~ extent subject to such participation, postpone the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Maturity Date, ~~any applicable Maturity Date~~ or date fixed for payment of interest on, the Notes or any fees or other ~~date upon which any payment of money is due~~ amounts payable hereunder, in each case to the ~~Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable~~ extent subject to ~~the Lenders, (C) reduce the amount of any installment of principal due under the Notes~~such participation, or ~~(D)~~ release ~~any Guarantor~~ the 77 Company from its ~~Guaranty.~~ Obligations under Article 11 hereof, and (f) no Borrower ~~agrees that upon the occurrence and during the continuance of any Event of Default, each Lender~~ shall be ~~entitled~~ subject to ~~assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights~~ any increased liability to any Bank pursuant to this Agreement by virtue of such participation. No participant shall constitute a "Bank" under this Agreement or any Loan Document, and the ~~Loan Documents,~~ Borrowers shall continue to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of deal solely and directly with the Administrative ~~Agent~~Agent and the Banks.

Appears in 1 contract

Sources: Credit Agreement (Amgen Inc)

Appears in 1 contract

Sources: Loan Agreement (Mandalay Resort Group)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents ~~to which Borrower is a Party~~ will be binding upon and inure to the benefit of ~~Borrower~~Parent, Borrowers, the ~~Administrative Agent, each of the Lenders~~Creditors, and their respective successors and assigns, ~~except~~ EXCEPT that ~~Borrower~~ Parent and Borrowers may not assign ~~its~~ their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the ~~Lenders~~Lenders (any purported assignment by Parent or any Borrower in violation of this Section being VOID AB INITIO). Each Lender represents that it is not acquiring its ~~Note~~ Notes with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such ~~Note~~ Notes must be within the control of such Lender). Any Lender may at any time pledge its ~~Note~~ Notes or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights~~ Pro Rata Share and ~~obligations under this Agreement (including all or a portion of~~ its ~~Commitment, the Advances owing to it and the Note or Notes held by it)~~Notes; ~~provided that, subject to subsection (f) below,~~ PROVIDED that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning ~~Lender~~Lender having a combined capital and surplus in excess of $100,000,000, shall be approved by each of the Administrative Agent (which approval shall not be unreasonably withheld) and ~~Borrower~~ the Parent and the Borrowers (~~neither of~~ which ~~approvals~~ approval shall not be unreasonably withheld ~~or delayed~~and will not be required if an Event of Default has occurred and remains continuing), (ii) such assignment shall be evidenced by an Assignment ~~and Acceptance~~Agreement, a copy of which shall be furnished to the Administrative ~~Agent as hereinbelow provided~~Agent, (iii) ~~except~~ EXCEPT in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that~~ Pro Rata Share which is ~~equivalent to~~ less than $~~3,000,000~~5,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment ~~and Acceptance~~Agreement, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date the Administrative Agent has received the Assignment ~~and Acceptance~~Agreement. Upon the effective date of such Assignment ~~and Acceptance~~Agreement, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this ~~Agreement~~Agreement and the other Loan Documents. Each Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to ~~Borrower~~ the Borrowers of ~~such Lender’s~~ its Notes) to such assignee Lender, Notes evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share, and to the assigning Lender, Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an Assignment ~~and Acceptance~~Agreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ the Parent or its Subsidiaries or the -64- performance by ~~Borrower~~ the Parent or its Subsidiaries of the Obligations; (iii) it has received a copy of this ~~Agreement~~Agreement and the other Loan Documents, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment ~~and Acceptance~~Agreement; (iv) it will, independently and without reliance upon ~~the Administrative Agent or~~ any ~~Lender~~ other Creditor 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) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement and the Loan Documents as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain ~~at the Administrative Agent’s Office~~ a copy of each Assignment ~~and Acceptance~~ Agreement delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agentit. After receipt of a completed Assignment ~~and Acceptance~~ Agreement executed by any Lender and an Eligible Assignee, and receipt (except in the case of the assignment to an Affiliate of the Assignor) of an assignment fee of $3,500 from such ~~Lender or~~ Eligible Assignee, the Administrative Agent ~~shall, promptly following~~ shall confirm the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners effectiveness of the ~~Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no~~ assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the ~~applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof~~parties thereto, Parent and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityBorrowers. (e) Each Lender may from time to time grant participations in a portion of its Pro Rata Share, in each case to one or more banks or other financial institutions ~~in or to all or a portion of its rights and/or obligations under this Agreement~~(INCLUDING another Lender); ~~provided~~PROVIDED, ~~however~~HOWEVER, that (i) such Lender’s 's obligations under ~~this Agreement~~ the Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose ~~except~~EXCEPT, if the participation agreement so provides, for the purposes of Sections ~~3.5,~~ 3.6, ~~11.11~~ 3.7 and ~~11.21~~ 11.10, but only to the extent that the cost of such benefits to ~~Borrower~~ Parent and Borrowers does not exceed the cost which ~~Borrower~~ Parent and the Borrowers would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, (iv) ~~Borrower~~Parent, the ~~Administrative Agent~~ Borrowers and the other ~~Lenders~~ Creditors shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall ~~be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall~~ not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~Commitment, or in the granting Lender~~’s rights and obligations hereunder~~'s Pro Rata Share, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents ~~other than~~ OTHER THAN those which (A) extend ~~any Amortization Date, any applicable~~ the Maturity Date or any other date upon which any payment of money is due to the ~~Lenders~~Lender granting the participation, (B) reduce the rate of interest on the ~~Notes~~Notes of such Lender, any fee or any other monetary amount payable to ~~the Lenders~~that Lender, or (C) reduce the amount of any installment of principal due under the ~~Notes, or (D) release any Guarantor from its Guaranty~~Notes of that Lender. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests Notwithstanding anything in ~~its rights under~~ this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Section to the contrary, ~~except that~~the rights of the Lenders to make assignment of, ~~other than~~ and grant participations in, their Pro Rata Share of the Commitment shall be subject to the approval of any Gaming Board, to the extent required by applicable Gaming Laws. (g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC") of such Granting Lender, identified as such in writing from time to time by the Granting Lender to the Administrative Agent, Parent and the Borrowers, the option to provide to the Borrowers all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to Sections 2.1, 2.2 or 2.3, provided that (i) ~~assignments~~ nothing herein shall constitute a commitment to make any Loan by any SPC 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 Commitment of the Granting Lender to ~~an Affiliate~~ the same extent, and as if, such Loan were made by the 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 related 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 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 or similar proceedings under the laws of the United States or any State thereof, PROVIDED THAT the Granting Lender for each SPC hereby agrees to indemnify, save, and hold harmless each other party hereto for any loss, cost, damage and expense arising out of their inability to institute any such proceeding against its SPC. In addition, notwithstanding anything to the contrary contained in this Section 11.8, any SPC may (i) with notice to, but without the prior written consent of, Parent, the Borrowers or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to its Granting Lender or to ~~another~~ any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans (but nothing contained herein shall be construed in derogation of the obligation of the Granting Lender to make Loans hereunder), PROVIDED THAT neither the consent of the SPC or of any such assignee shall be required for amendments or waivers of provisions of the Loan Documents except for those amendments or waivers for which the consent of participants is required under Section 11.8(e)(vi), and (ii) ~~pledges~~ disclose on a confidential basis (in the same manner described in ~~the last sentence~~ Section 11.13) any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of ~~subsection (a) above~~a surety, ~~no assignment shall be made without the approval of the Administrative Agent~~guarantee or credit or liquidity enhancement to such SPC.

Appears in 1 contract

Sources: 364 Day Loan Agreement (Harrahs Entertainment Inc)

Binding Effect; Assignment. ~~(a)~~ 12.8.1 This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the Administrative~~ Agent, each of ~~the~~ Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the~~ Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a ~~Lender~~ lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that ~~Lender~~ lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. ~~(b)~~ 12.8.2 From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its~~ the Revolving Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by ~~the Administrative~~ Agent ~~and Borrower (neither~~ and, provided no Default or Event of Default then exists, Borrower, which ~~approvals~~ approval(s) shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed), ; (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to ~~the Administrative~~ Agent as ~~hereinbelow provided,~~ provided below; (iii) except in the case of an assignment (a) to an Affiliate of the assigning ~~Lender,~~ Lender or to another Lender or (b) of the entire remaining ~~rights and obligations~~ Revolving Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ the Revolving Commitment that is equivalent to less than $~~3,000,000, and~~ 5,000,000.00; (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) ~~Banking~~ Business Days after the date ~~the Administrative~~ Agent has received the Commitment Assignment and Acceptance; and (v) such Eligible Assignee shall execute an Alternative Dispute Resolution Agreement, in form and substance satisfactory to Agent. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share of the Revolving Commitment therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~its Note(s)) to such assignee Lender, ~~Notes~~ Note(s) evidencing that assignee Lender’s ~~Commitments and/or Advances~~Pro Rata Share of the Revolving Commitment, and to the assigning Lender, ~~Notes~~ Note(s) evidencing the ~~remaining balance of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. ~~(c)~~ 12.8.3 By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share of the Revolving Commitment being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent ~~financial statements~~ Financial Statements delivered pursuant to Section ~~7.1~~ 8 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon ~~the Administrative~~ 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; (v) it appoints and authorizes ~~the Administrative~~ Agent to take such action and to exercise such powers under this Agreement as are delegated to ~~the Administrative~~ Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. ~~(d) The Administrative~~ 12.8.4 Agent shall maintain at ~~the Administrative~~ Agent’s Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Commitment Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to ~~the Administrative~~ Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an a non-refundable assignment fee of Three Thousand Five Hundred Dollars ($~~3,500~~ 3,500.00) from such Lender or Eligible Assignee, ~~the Administrative~~ Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule ~~1.1~~ A giving effect thereto. Borrower, ~~the Administrative~~ Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata ~~Shares~~ Share of the Revolving ~~Facility~~ Commitment listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Pro Rata Share of the Revolving Commitment shall be effective, in each case unless and until an a Commitment Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by ~~the Administrative~~ Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving ~~Facility~~ Commitment shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving ~~Facility~~Commitment. ~~(e)~~ 12.8.5 Each Lender may from time to time grant participations to one or more banks or other financial institutions (a “Participant”) in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Pro Rata Share of the Revolving Commitment; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, ; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ; (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, (A) for the purposes of ~~Sections 3.5, 3.6, 11.11 and 11.21~~ Section 12.2.5 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of such Lender absent the participation and (B) for the purposes of Sections 2.17, 14.1, and 14.2 (subject to the requirements and limitations therein, including the requirements under Section 2.17(e) (it being understood that the documentation required under Section 2.17(e) shall be delivered to the Lender ~~granting such participation absent~~ who sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 12.8.2; provided, that, such participating bank (1) agrees to be subject to the provisions of Section 12.10 as if it were an assignee under Section 12.8.2, and (2) shall not be entitled to receive any greater payment under Sections 2.17, 14.1, and 14.2, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive; (iv) Borrower, ~~the Administrative~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, ; (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving ~~Facility~~ Commitment as it then exists ~~and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto),~~ or in the granting Lender’s ~~rights and obligations hereunder~~Pro Rata Share of the Revolving Commitment, so long as the amount of the participation interest is not affected ~~thereby~~ thereby; and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend ~~any Amortization Date, any applicable~~ the Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any ~~Guarantor~~ material Collateral from ~~its Guaranty. (f) Borrower agrees that upon~~ the ~~occurrence and during~~ Lien of the ~~continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan~~ Collateral Documents, ~~or grant participation interests~~ except if such release of material Collateral occurs in ~~its rights~~ connection with a disposition permitted under this Agreement or Section 3.7, in which case such release shall not require the consent of any of the Lenders or of any holder of a participation interest in the Revolving Commitment. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of 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 any Loan ~~Documents~~Document (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 Revolving Commitments, Loans, or its other obligations under any Loan Document) to any ~~Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document~~ Person except to the ~~contrary~~extent that such disclosure is necessary to establish that such Revolving Commitment, ~~except that~~Loan, or other ~~than (i~~obligation is in registered form under Section 5f.103-1(c) ~~assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval~~ of the ~~Administrative Agent~~United States Treasury Regulations.

Appears in 1 contract

Sources: Loan and Security Agreement (Aerocentury Corp)

Binding Effect; Assignment. (a) This Agreement shall become effective when it shall have been executed by the Borrowers and the ~~other Loan Documents to which Borrower is a Party will~~ Administrative Agent and when the Administrative Agent shall have been notified by each Bank that such Bank has executed it and thereafter shall be binding upon and inure to the benefit of ~~Borrower~~the Borrowers, the Administrative ~~Agent,~~ Agent and each ~~of the Lenders,~~ Bank and their respective successors and assigns, except that no Borrower ~~may not~~ shall have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning~~ of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgeBanks. (b) ~~From time~~ Any Bank may assign, participate or otherwise transfer all or any part of, or interest in, such Bank’s rights and obligations hereunder and under the Notes issued to ~~time following the Closing Date, each Lender may assign~~ it hereunder to one or more ~~Eligible Assignees~~ banks or other entities (excluding natural persons and Persons which are not Qualifying Banks); provided that (i) in the case of any assignment or other transfer (other than a participation) to a Person that is not a Bank, an Affiliate of a Bank or an Approved Fund, the Borrowers (except during the continuance of an Event of Default), the Issuing Banks, the Swingline Banks and the Administrative Agent, in each case whose consent shall not be unreasonably withheld or delayed, shall have expressly agreed in writing; provided that a material increase in counterparty risk shall be reasonable grounds (although not exclusive grounds) for the withholding of such consent; and further provided that each Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; (ii) in the case of any assignment in part, the amount of the Commitment being assigned pursuant to such assignment shall in no event be less than €5,000,000 (or a lesser amount approved by the Administrative Agent and, except during the continuance of an Event of Default, the Borrowers); and (iii) any participation shall be in compliance with Section 11.06(f). Upon the effectiveness of any such assignment (but not in the event of any such participation or other transfer), such assignee shall be a Bank hereunder and shall have all the rights and benefits thereof. However, unless and until the conditions for the Administrative Agent’s treating such assignee as holder pursuant to clause (c) below shall have been satisfied, such assignee shall not be entitled to exercise the rights of a Bank under this Agreement and the Administrative Agent shall not be obligated to make payment of any amount to which such assignee may become entitled hereunder other than to the Bank which assigned its rights to such assignee. Nothing contained herein shall impair the ability of any Bank, in its discretion, to agree, solely as between itself and its assignees, participants and other transferees, upon the manner in which such Bank shall exercise its rights under this Agreement and the Notes made to such Bank. The assignee, if it shall not already be a Bank, 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 Borrowers and their affiliates and their 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. (c) In order to effect any assignment permitted hereunder by a Bank of all or any portion of its Commitment hereunder, the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined below), an agreement substantially in the form of Exhibit 11.06 hereto (an “Assignment and Acceptance”), together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 payable by the assignor or assignee. Upon such execution, delivery, acceptance and recording and delivery to the Administrative Agent of such assignee’s Administrative Questionnaire, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Bank’s rights and obligations under this ~~Agreement (including all or~~ Agreement, such Bank shall cease to be a ~~portion of its Commitment, the Advances owing~~ party hereto but shall continue to ~~it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall~~ be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished entitled to the ~~Administrative Agent as hereinbelow provided~~benefits of Sections 5.13, ~~(iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender~~ 5.15 and 11.04 for any events or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) circumstances occurring or existing before the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderassignment). (cd) By executing and delivering an Assignment and Acceptance, the ~~Eligible Assignee~~ Bank assignor thereunder ~~acknowledges~~ and ~~agrees that~~the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than ~~the representation~~ as provided in such Assignment and ~~warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim~~Acceptance, ~~the~~ such assigning ~~Lender has made~~ 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~~ genuineness, sufficiency or ~~sufficiency~~ value of this Agreement or any other ~~Loan Document~~instrument or document furnished pursuant hereto; (ii) ~~the~~ such assigning ~~Lender has made~~ Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ any Loan Party or the performance or observance by ~~Borrower~~ any Loan Party of ~~the Obligations~~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 ~~most recent~~ financial statements referred to in Section 11(f) of the Guaranty (and any later statements delivered pursuant to Section ~~7.1~~ 12(a) of the Guaranty) 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) it such assignee will, independently and without reliance upon the Administrative ~~Agent~~ Agent, such assigning Bank or any ~~Lender~~ 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) it 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 ~~this Agreement~~the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Bank. (de) The Administrative ~~Agent~~ Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at ~~the Administrative Agent’s Office~~ its address referred to in Section 11.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of (and stated interest on) the Advances owing to, each Bank from time to time (the “Register”~~) of~~ ). The entries in the ~~names~~ Register shall be conclusive and ~~address of each of the Lenders~~ binding for all purposes, absent manifest error, and the ~~Pro Rata Share~~ Borrowers, the Administrative Agent and the Banks shall treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of ~~the Commitments held by each Lender, giving effect to each Assignment and Acceptance~~this Agreement. The Register shall be available ~~during normal business hours~~ for inspection by any Borrower or any ~~Lender upon~~ Bank at any reasonable ~~prior notice to the Administrative Agent. After receipt of a completed Assignment~~ time and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time ~~grant~~ upon reasonable prior notice. (f) Any Bank may, without the consent of the Borrowers, the Administrative Agent, the Issuing Banks or the Swingline Banks (but with notice to the Borrowers, unless such participation is sold to an Affiliate of such Bank), sell to any Person (other than a Person which is not a Qualifying Bank, a natural Person, a Defaulting Bank or any Borrower or any Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) participations ~~to one~~ in all or ~~more banks or other financial institutions in or to~~ a portion of such Bank’s rights and/or obligations under this Agreement (including all or a portion of its ~~rights~~ Commitment and/or ~~obligations under this Agreement~~the Advances (including such Bank’s participations in Swingline Loans) owing to it); ~~provided, however,~~ provided that (i) such ~~Lender~~Bank’s obligations under this Agreement shall remain unchanged, (ii) such ~~Lender~~ Bank shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) BorrowerBorrowers, the Administrative Agent and the ~~other Lenders~~ Banks shall continue to deal solely and directly with such ~~Lender~~ Bank in connection with such ~~Lender~~Bank’s rights and obligations under this Agreement. For the avoidance of doubt, ~~(v) the participation interest~~ each Bank shall be ~~expressed as~~ responsible for the indemnity under Section 10.05 without regard to the existence of any participation. Any agreement or instrument pursuant to which a ~~percentage~~ Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of ~~the granting Lender’s Pro Rata Share~~ any provision of ~~the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (~~this Agreement; provided that such agreement or ~~the aggregate Commitments pertaining thereto)~~instrument may provide that such Bank will not, ~~or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi)~~ without the consent of the ~~holder~~ Participant, agree to any amendment, waiver or other modification described in the third sentence of Section 11.01 that affects such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees Participant. The Borrowers agree that ~~upon the occurrence and during the continuance of any Event of Default,~~ each ~~Lender~~ Participant shall be entitled to ~~assign~~ the benefits of Sections 5.13 and 5.15 to the same extent as if it were a Bank and had acquired its ~~rights hereunder~~ interest by assignment pursuant to this Section (it being understood that the documentation required under Section 5.15(f) shall be delivered to the Borrowers and Administrative Agent) to the same extent as if it were a Bank and had acquired its interest by assignment; provided that such Participant (A) agrees to be subject to the provisions of Section 5.18 and of the last sentence of Section 5.11 as it if were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 5.13 or 5.15 with respect to any participation, than the Bank 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. Each Bank that sells participation agrees, at the request and expense of any Borrower, to use reasonable efforts to cooperate with such Borrower to effectuate the provisions of Section 5.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.05 as though it were a Bank; provided that such Participant agrees to be subject to Section 5.17 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 Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances or other obligations under the Loan ~~Documents~~Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or ~~grant participation interests~~ its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. 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 participations for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its ~~rights~~ capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (g) Notwithstanding anything contained herein to the contrary, each Bank may pledge its right, title and interest under this Agreement and any Note made to it to the ~~Loan Documents~~Board of Governors of the Federal Reserve System, ~~to any Person, in whole~~ or ~~in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in~~ any other ~~Loan Document~~ Governmental Authority, as security for financial accommodations or privileges being provided or extended to ~~the contrary, except that, other than (i) assignments~~ such Bank by ~~a Lender to an Affiliate of~~ such ~~Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~Governmental Authority.

Appears in 1 contract

Sources: Credit Agreement (Baxter International Inc)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person or entity not a party to this Agreement. No assignment of this Agreement or of any rights or obligations hereunder may be made by any Management Holder, ~~except that Borrower may not assign its rights hereunder~~ the Management Holder Representative or ~~thereunder~~ TUNI, directly or ~~any interest herein~~ indirectly (by operation of law or ~~therein~~ otherwise), without the prior written consent of ~~all~~ the ~~Lenders. Each Lender represents~~ other parties hereto and any attempted assignment without the required consents shall be void; provided that (a) TUNI may assign it ~~is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933~~rights, ~~as amended (subject~~ interests and obligations hereunder to any ~~requirement that disposition~~ of ~~such Note must be within~~ its Affiliates without the ~~control~~ consent of ~~such Lender). Any Lender may at any time pledge its Note or~~ any other ~~instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank~~party hereto, ~~but no such pledge~~ provided that TUNI shall ~~release that Lender from~~ not be relieved of its obligations ~~hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.~~ hereunder; (b) ~~From time to time following the Closing Date, each Lender~~ TUNI may assign ~~to one or more Eligible Assignees all or any portion of~~ its ~~rights~~ obligations under Article IV in connection with a Third Party Sale as provided in Article VI and (c) the Management Holder Representative may, with such consent, assign it rights, interests and obligations ~~under this~~ hereunder to a successor “Seller Representative” in accordance with Section 11.10 of the Purchase Agreement (~~including all or a portion~~ who shall serve as successor Management Holder Representative). No assignment of ~~its Commitment,~~ any obligations hereunder shall relieve the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date parties hereto of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreementobligations; provided, however, that a Management Holder Representative shall be relieved of its obligations hereunder upon appointment of a successor “ Seller Representative” in accordance with Section 11.10 of the Purchase Agreement (i) who shall serve as successor Management Holder Representative). Upon any such ~~Lender’s obligations under~~ permitted assignment by TUNI or the Management Holder Representative, the references in this Agreement ~~shall remain unchanged, (ii) such Lender shall remain solely responsible~~ to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (TUNI or the ~~aggregate Commitments pertaining thereto)~~Management Holder Representative, respectively, shall also apply to TUNI’s or in the ~~granting Lender~~Management Holder Representative’s ~~rights and obligations hereunder~~assignee, ~~so long~~ as the ~~amount of~~ case may be, unless the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantycontext otherwise requires. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Agreement With Respect to Certain Shares and Options (TransUnion)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties and their respective ~~successors~~ successors, permitted assigns and ~~assigns~~legal representatives. Neither this Agreement or any of the Ancillary Agreements, ~~except that Borrower may not assign its rights~~ nor any of the rights, interests or obligations hereunder or ~~thereunder~~ thereunder, may be assigned, in whole or in part, by operation of law or otherwise by Parent or any ~~interest herein or therein~~ Seller without the prior written consent of ~~all the Lenders. Each Lender represents~~ Purchaser and any such assignment that it is not ~~acquiring its Note with a view~~ consented to ~~the distribution thereof within the meaning of the Securities Act of 1933~~shall be null and void. Purchaser, ~~as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender~~ Purchaser Parent and Holdco may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may transfer and assign to one or more ~~Eligible Assignees all~~ Persons, which may be a Newco Insurance Company or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an other wholly owned Affiliate of ~~the assigning Lender~~Purchaser, ~~shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld~~ some or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate all of the ~~assigning Lender, to another Lender or of the entire remaining rights~~ Transferred Assets and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000Other Assumed Liabilities, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for some or all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations ~~hereunder being assigned thereby free~~ of Purchaser, Purchaser Parent and ~~clear~~ Holdco under this Agreement and each of the Ancillary Agreements to which any ~~adverse claim~~of them is a party, and any other agreements, documents or instruments executed by Purchaser, Purchaser Parent, Holdco, Sellers or Parent, as the ~~assigning Lender has made no representation or warranty and assumes no responsibility with respect to any statements~~case may be, ~~warranties or representations made in or~~ in connection with ~~this Agreement or~~ the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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 transactions under this Agreement; ~~(v) it appoints and authorizes the Administrative Agent to take~~ provided that all such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lenderassets, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeliabilities, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations ~~hereunder~~ may be allocated among the Purchaser, Purchaser Parent, Holdco and any such transferee, as may be determined by Purchaser, in its sole discretion; and provided, further, that no such assignment shall limit or adversely affect in any manner whatsoever, Purchaser's indemnification rights hereunder. Purchaser, Purchaser Parent, Holdco, Parent and Sellers agree that, upon such transfers, assignments and assumptions, as the case may be, the transferee or transferees shall be ~~effective~~substituted for Purchaser, ~~in each~~ Purchaser Parent and Holdco, as the case ~~unless~~ may be, as if such transferee or transferees, as the case may be, were Purchaser, Purchaser Parent and ~~until an Assignment~~ Holdco, as the case may be hereunder and ~~Acceptance effecting~~ that Purchaser, Purchaser Parent and Holdco, as the ~~assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation~~case may be, ~~all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility~~ shall be ~~owed to the Lender listed~~ released and discharged in ~~the Register as the owner thereof,~~ all respects from any and all obligations or liabilities assumed by any ~~request, authority~~ such transferee or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreementtransferees; provided, however, that ~~(i) such Lender’s~~ in the event that Purchaser assigns any or all of its obligations under ~~this~~ either Indemnity Reinsurance Agreement ~~shall remain unchanged, (ii) such Lender shall remain solely responsible~~ to a transferee insurance company which is not at the ~~other parties hereto for the performance~~ time of such ~~obligations~~assignment rated, ~~(iii)~~ as to its claims paying ability, after giving effect to such assignment, A- or better by Standard & Poor's or in the ~~participating banks~~ case of Allstate Floridian Insurance Company, Allstate Floridian Indemnity Company, Allstate New Jersey Insurance Company or ~~other financial institutions~~ any "single state" licensed property and casualty insurance company organized as a direct or indirect Subsidiary of Purchaser Parent to write personal lines insurance in Massachusetts B++ or higher by A.M. Best Company, Inc., Purchaser shall not be ~~a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11~~ released and ~~11.21 but only~~ discharged with respect to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) 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 liabilities and obligations ~~under this Agreement, (v) the participation interest~~ assumed by such insurance company until such time as such insurance company shall be ~~expressed~~ rated as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)to its claims paying ability at least A- by Standard & Poor's, or in the ~~granting Lender’s rights and obligations hereunder~~case of Allstate Floridian Insurance Company, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization DateAllstate Floridian Indemnity Company, ~~any applicable Maturity Date~~ Allstate New Jersey Insurance Company or any ~~other date upon which any payment~~ "single state" licensed property and casualty insurance company organized as a direct or indirect Subsidiary of ~~money is due~~ Purchaser Parent to ~~the Lenders~~write personal lines insurance in Massachusetts B++ or higher by A.M. Best Company, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.Inc.

Appears in 1 contract

Sources: Asset Purchase and Investment Agreement (Cna Financial Corp)

Binding Effect; Assignment. (a) ~~This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure~~ Notwithstanding anything herein to the ~~benefit of Borrower~~contrary, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of ~~a Lender hereunder absent foreclosure~~ any Preferred Holder under Section 2.1, Section 2.2, Section 3.6, Section 6, Section 7, Section 8 and Section 9 may be assigned to the extent such Preferred Holder transfers any Preferred Shares held thereby to another Person in compliance with Section 7 and (i) the Company is, within reasonable time after such transfer, furnished with written notice of the name and address of such ~~pledge~~transferee or assignee and the securities with respect to which such rights are being assigned and (ii) such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Section 10 and the terms and conditions of each Section of this Agreement with respect to which any rights are being assigned thereto under this clause. From the time of such transfer or assignment, for all purposes of each Section of this agreement with respect to which rights are assigned thereto under this clause, such transferee or assignee shall be treated as a "Preferred Holder." (b) ~~From time~~ Notwithstanding anything herein to ~~time following~~ the ~~Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment~~contrary, the ~~Advances owing~~ rights of any Holder under Section 5 may be assigned to it the extent such Holder transfers any Registrable Securities held thereby to another Person in compliance with Section 7 and ~~the Note or Notes held by it); provided that, subject to subsection (f) below,~~ (i) the Company is, within a reasonable time after such ~~Eligible Assignee~~transfer, ~~if not then a Lender or an Affiliate~~ furnished with written notice of the ~~assigning Lender, shall be approved by~~ name and address of such transferee or assignee and the ~~Administrative Agent and Borrower (neither of~~ securities with respect to which ~~approvals shall be unreasonably withheld or delayed),~~ such rights are being assigned; (ii) such ~~assignment shall~~ transferee or assignee agrees in writing to be ~~evidenced~~ bound by ~~an Assignment~~ and ~~Acceptance, a copy of which shall be furnished~~ subject to the ~~Administrative Agent as hereinbelow provided,~~ terms and conditions of Section 5 and this Section 10; and (iii) ~~except in~~ immediately following such transfer or assignment the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion further disposition of such ~~assigning Lender’s Commitments and/or Advances owing to such assigning Lender that~~ securities by the transferee or assignee is ~~equivalent to less than $3,000,000, and (iv)~~ restricted under Applicable Securities Law. From the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date time of such ~~Assignment and Acceptance~~transfer or assignment, ~~the Eligible Assignee named therein shall be a Lender~~ for all purposes of ~~this Agreement~~Section 5, ~~with the Commitments and/or Advances therein set forth and, to the extent of~~ such ~~Commitments and/or Advances, the assigning Lender~~ transferee or assignee shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lendertreated as a "Holder". (c) ~~By executing~~ This Agreement shall be binding upon and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held enforceable by each ~~Lender~~party, ~~giving effect to each Assignment~~ its successors and ~~Acceptance~~permitted assigns. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register Except as provided ~~above. Prior to such recordation~~in Section 8.2(c), ~~all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register~~ Section 10.1(a) and Section 10.1(b) or as ~~the owner thereof~~required by Section 7.4(b), ~~and~~ no party may assign any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights ~~and/or~~ or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the prior written approval of the ~~Administrative Agent~~other parties.

Appears in 1 contract

Sources: Shareholder Agreements (Focus Media Holding LTD)

Binding Effect; Assignment. ~~(a)~~ 12.8.1 This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the Administrative Agent~~Agents, each of ~~the~~ Credit Facility Lenders, and their respective permitted successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the~~ Lenders. Each Credit Facility Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Credit Facility Lender may at any time pledge its Note or any other instrument evidencing its rights as a ~~Lender~~ lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that ~~Lender~~ lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Credit Facility Lender hereunder absent foreclosure of such pledge. ~~(b)~~ 12.8.2 From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its~~ the Revolving Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate or Approved Fund of the assigning Lender, shall be approved by ~~the~~ Administrative Agent ~~and Borrower (neither~~ and, provided no Default or Event of Default then exists, Borrower, which ~~approvals~~ approval(s) shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed), ; (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to ~~the~~ Administrative Agent as hereinbelow provided, ; (iii) except in the case of an assignment (a) to an Affiliate of the assigning ~~Lender,~~ Lender or to another Lender or (b) of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ the Revolving Commitment that is equivalent to less than $~~3,000,000, and~~ 5,000,000.00; (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) ~~Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Commitment Assignment and Acceptance; and (v) the consent of Issuing Lender and Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share of the Revolving Commitment therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~its Note(s)) to such assignee Lender, ~~Notes~~ Note(s) evidencing that assignee Lender’s ~~Commitments and/or Advances~~Pro Rata Share of the Revolving Commitment, and to the assigning Lender, ~~Notes~~ Note(s) evidencing the ~~remaining balance of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. ~~(c)~~ 12.8.3 By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share of the Revolving Commitment being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section ~~7.1~~ 8 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon ~~the~~ Administrative 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; (v) it appoints and authorizes ~~the~~ Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to ~~the~~ Administrative Agent by this Agreement; and (vi) 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. 12.8.4 Administrative Agent, acting solely for this purpose as an agent of Borrower (~~d) The Administrative Agent~~ and such agency being solely for tax purposes), shall maintain at ~~the~~ Administrative Agent’s Office a copy of each Commitment Assignment and Acceptance delivered to it (or the equivalent thereof in electronic form) and a register (the “Register”) of the names and address of each of the ~~Lenders~~ Lenders, and the Pro Rata Share of the Commitments held by by, and principal amounts (and stated interest) of the Loans owing to, each ~~Lender~~Credit Facility Lender pursuant to the terms hereof from time to time. The entries in the Register shall be conclusive absent manifest error, ~~giving effect~~ and Borrower, the Agents and the Credit Facility Lenders shall treat each Person whose name is recorded in the Register pursuant to ~~each Assignment and Acceptance~~the terms hereof as a Credit Facility Lender hereunder for all purposes of this Agreement. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to ~~the~~ Administrative Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an a non-refundable assignment fee of Three Thousand Five Hundred Dollars ($~~3,500~~ 3,500.00) from such Lender or Eligible Assignee, ~~the~~ Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule ~~1.1~~ A giving effect thereto. Borrower, ~~the~~ Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata ~~Shares~~ Share of the Revolving ~~Facility~~ Commitment listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Pro Rata Share of the Revolving Commitment shall be effective, in each case unless and until an a Commitment Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by ~~the~~ Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving ~~Facility~~ Commitment shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving ~~Facility~~Commitment. ~~(e)~~ 12.8.5 Each Lender may from time to time grant participations to one or more banks or other financial institutions (a “Participant”) in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Pro Rata Share of the Revolving Commitment; ~~provided, however,~~ provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, ; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ; (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, (A) for the purposes of ~~Sections 3.5, 3.6, 11.11 and 11.21~~ Section 12.3 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, and (B) for the purposes of Sections 2.20, 15.1, and 15.2 (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 Lender who sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 12.8.2; provided that such participating bank (1) agrees to be subject to the provisions of Section 12.10 as if it were an assignee under Section 12.8.2, and (2) shall not be entitled to receive any greater payment under Sections 2.20, 15.1, and 15.2, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive (iv) Borrower, ~~the Administrative Agent~~ 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, ; (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving ~~Facility~~ Commitment as it then exists and shall not restrict an increase in the Revolving ~~Facility (or the aggregate Commitments pertaining thereto)~~Commitment, or in the granting Lender’s ~~rights and obligations hereunder~~Pro Rata Share of the Revolving Commitment, so long as the amount of the participation interest is not affected ~~thereby~~ thereby; and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents and the Lender granting such participation shall be empowered to bind such participant for the purpose of all consents, waiver and amendments other than those which (Aa) extend ~~any Amortization Date, any applicable~~ the Maturity Date or any other date upon which any payment of money is due to the Lenders, (Bb) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (Cc) reduce the amount of any installment of principal due under the Notes, or (Dd) release ~~any Guarantor~~ all or a substantial portion of the Collateral from ~~its Guaranty. (f) Borrower agrees that upon~~ the ~~occurrence and during~~ Lien of the ~~continuance~~ Collateral Documents if the effect thereof is to cause the outstanding principal amount of ~~any Event~~ the Loans to exceed the amount of ~~Default~~the Borrowing Base, ~~each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests~~ except if such release of Collateral occurs in ~~its rights~~ connection with a disposition permitted under this Agreement in which case such release shall not require the consent of any of the Lenders or of any holder of a participation interest in the Revolving Commitment. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of 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 any Loan ~~Documents~~Document (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 Revolving Commitments, Loans, or its other obligations under any Loan Document) to any ~~Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document~~ Person except to the ~~contrary~~extent that such disclosure is necessary to establish that such Revolving Commitment, ~~except that~~Loan, or other ~~than (i~~obligation is in registered form under Section 5f.103-1(c) ~~assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval~~ of the ~~Administrative Agent~~United States Treasury Regulations.

Appears in 1 contract

Sources: Credit Agreement (Willis Lease Finance Corp)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of ~~its Commitment,~~ the Advances owing to it and the Note ~~or Notes~~ held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed); provided, however, that any such assignment by Camden Partners (or either of them) to any Person which is not an Affiliate of the transferor shall require the approval of Borrower, which may be given or withheld in Borrower’s sole discretion, (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such ~~assigning Lender’s Commitments and/or~~ Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or~~ Advances therein set forth and, to the extent of such ~~Commitments and/or~~ Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s ~~Commitments and/or~~ Advances, and to the assigning Lender, Notes evidencing the remaining balance of the ~~Commitments and/or~~ Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the ~~Revolving~~ Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata ~~Share~~ Shares of the ~~Revolving~~ Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata ~~Share~~ Shares of the ~~Revolving~~ Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6,~~ Section 11.11 ~~and 11.21~~ but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the ~~Revolving~~ Facility as it then exists and shall not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~Facility, or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any ~~Amortization Date, any applicable~~ Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (New Horizons Worldwide Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which ~~Borrower is~~ the Loan Parties are a ~~Party~~ party are and will be binding upon and inure to the benefit of ~~Borrower~~the Loan Parties, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that ~~Borrower~~ the Loan Parties may not assign ~~its~~ their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders, and any purported assignment without such consent shall be null and void. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge or assign a security in all or any portion of its Note or any other instrument evidencing its rights as a Lender under this Agreement to secure obligations of such Lender, including without limitation (i) any pledge or assignment to secure obligations to a Federal Reserve Bank, ~~but~~ and (ii) in the case of a Lender that is a Related Fund, any pledge or assignment to any holders of obligations owed, or security issued, by such Lender, including to any trustee for, or any other representative of such holders, provided that no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank or other pledgee or assignee the rights of a Lender hereunder absent foreclosure of such ~~pledge~~pledge or assignment. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion of its~~ Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate or Related Fund of ~~the assigning~~ a Lender, shall ~~be approved~~ require approval by the Administrative Agent and ~~Borrower~~ (if no Event of Default then exists) Parent (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitments Assignment and Acceptance, a copy of ~~which~~ which, together with any Notes subject to such assignment, shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate or Related Fund of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ share of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ the Commitment that is equivalent to less than $~~3,000,000~~2,000,000, (iv) the assignment shall be of a constant, and not a varying, percentage of the Assignor’s rights and obligations under this Agreement, and (ivv) the effective date of any such assignment shall be as specified in the Commitments Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitments Assignment and ~~Acceptance~~Acceptance unless otherwise agreed by the Administrative Agent. Upon the effective date of such Commitments Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with ~~the Commitments and/or Advances~~ a Percentage and Commitment amount as therein (and herein, if such Eligible Assignee was already a Lender) set forth and, to the extent of ~~such Commitments and/or Advances~~the portion of the Commitment assigned, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver ~~(against delivery by the assigning Lender to Borrower of such Lender’s Notes)~~ to such assignee Lender, Notes evidencing that assignee Lender’s ~~Commitments and/or Advances~~Commitment, and to the assigning Lender, Notes evidencing the remaining balance of ~~the Commitments and/or Advances retained by the assigning~~ such Lender’s Commitment. (c) By executing and delivering an a Commitments Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) ~~other than~~ the ~~representation~~ Administrative Agent and ~~warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim,~~ the assigning Lender ~~has~~ have not made no any 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 or sufficiency of this Agreement or any other Loan Document; (ii) the ~~assigning~~ Administrative Agent and the Assigning Lender ~~has~~ have not made no any representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ the Loan Parties or the performance by ~~Borrower~~ the Loan Parties of the Obligations; (iii) it has received a copy of this ~~Agreement~~Agreement and the other Loan Documents, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitments Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Commitments Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the ~~Pro Rata Share of the Commitments~~ Percentage and Commitment amount held by each Lender, giving effect to each Commitments Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitments Assignment and Acceptance executed by any Lender and an Eligible ~~Assignee~~Assignee and the Notes subject to such assignment, and receipt of an assignment fee of $3,500 from such Lender or Eligible ~~Assignee~~Assignee (which fee shall be imposed only once with respect to simultaneous transfers on a single day to different Affiliates or Related Funds of such Lender), the Administrative Agent shall, promptly following the effective date thereof, upon the request of any party, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the ~~Pro Rata Shares of the Revolving Facility~~ Commitments listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Commitment shall be effective, in each case unless and until an a Commitments Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable ~~Pro Rata Share of the Revolving Facility~~ Commitment shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of ~~the corresponding Pro Rata Share of the Revolving Facility~~such Commitment. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (including another Lender but excluding an Employee Plan) in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Commitment; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.7, ~~3.6~~3.8, 11.11 and ~~11.21~~ 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred ~~in respect of the Lender granting such participation~~ absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s ~~Pro Rata Share of the Revolving Facility~~ Commitment as it then exists and shall not ~~restrict an increase in the Revolving Facility (~~afford such participant any rights or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of privileges under the Loan Documents ~~other than those which~~ except as provided in clause (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (biii) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Secured Term Loan Agreement (BioMed Realty Trust Inc)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of Borrower, the ~~Administrative Agent, each of~~ Agent and the ~~Lenders,~~ Banks and their respective successors and assigns, except that Borrower ~~may~~ shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)Banks. Any ~~Lender~~ Bank may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other ~~financial institutions in or to~~ entities ("Purchasers") all or ~~a portion~~ any part of its Loans, Commitments and its rights ~~and/or~~ and obligations under its Note and under this Agreement. Such assignment shall be in substantially the form of Exhibit D. Each such assignment shall either be in an amount equal to the entire applicable Commitment and Loans of the assigning Bank or (unless each of Borrower and the Agent otherwise consents) be in an aggregate amount not less than $5,000,000. Unless an Event of Default has occurred and is continuing, the consent of Borrower shall be required prior to an assignment becoming effective with respect to a Purchaser which is not a Bank or an Affiliate thereof. Such consent shall not be unreasonably withheld. The consent of the Agent and the LC Issuer shall be required prior to an assignment becoming effective. Notwithstanding the foregoing provisions of this Section 10.8(B), any Bank may at any time assign all or any portions of its Outstanding Credit Exposure and Note to a Federal Reserve Bank (but no such assignment shall release any Bank from any of its obligations hereunder). Upon delivery to the Agent and Borrower of (i) an assignment, together with any consent required by this Section 10.8, and (ii) payment of a $3,500 fee to the Agent for processing such assignment, such assignment shall become effective on the effective date specified in such assignment. On and after the effective date of such assignment, such Purchaser shall for all purposes be a Bank party to this Agreement and shall have all the rights and obligations of a Bank under this Agreement, to the same extent as if it were an original party hereto, and no further consent or action by Borrower, the Agent or any other Bank shall be required to release the transferor Bank with respect to the percentage of the Outstanding Credit Exposure and Commitments assigned to such Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to this Section 10.8, the transferor Bank and Borrower shall make appropriate arrangements so that a replacement Note is issued to such transferor Bank and a new Note or, as appropriate, a replacement Note is issued to such Purchaser, in each case in principal amounts reflecting its Pro Rata Share of the Aggregate Commitment (or, to the extent the assignment relates to Facility A and occurs on or after the Commitment Termination Date, its share of the LC Obligations outstanding on the Commitment Termination Date). Borrower authorizes each Bank to disclose to any Participant or Purchaser or any other entity acquiring an interest in this Agreement or its Note by operation of law (each a "Transferee") and any prospective Transferee any and all information in such Bank's possession concerning the creditworthiness of Borrower and its Subsidiaries. This Agreement and all covenants, representations and warranties made herein and/or in any of the other Financing Documents shall survive the making of the Credit Extensions, the execution and delivery of the Financing Documents and shall continue in effect so long as any amounts payable under or in connection with any of the Financing Documents or any other Indebtedness of Borrower to the Banks remains unpaid or any Commitment remains outstanding; provided, however, that ~~(i) such Lender’s obligations under this Agreement~~ Section 10.6 shall survive and remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 in full force and ~~11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect~~ effect after expiration of the ~~Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent~~ Commitments and ~~the other Lenders shall continue to deal solely and directly with such Lender~~ repayment in full of all amounts payable under or in connection with ~~such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage~~ all of the ~~granting Lender’s Pro Rata Share of the Revolving Facility as it then exists~~ Financing Documents and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantysuch Indebtedness. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Ipalco Enterprises Inc)

Binding Effect; Assignment. (a) This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon Purchaser and, subject to the terms of the Bidding Procedures Order (with respect to the matters covered thereby) and the entry and terms of the Sale Order, Sellers, and shall inure to the benefit of ~~Borrower,~~ and be so binding on the ~~Administrative Agent, each of the Lenders,~~ Parties and their respective successors and permitted assigns, ~~except that Borrower may not assign its rights hereunder~~ including any trustee or ~~thereunder~~ estate representative appointed in the Bankruptcy Cases or any ~~interest herein~~ successor Chapter 7 cases; provided that, subject to Section 10.4(b), neither this Agreement nor any of the rights or ~~therein~~ obligations hereunder may be assigned or delegated without the prior written consent of ~~all the Lenders. Each Lender represents~~ Purchaser and Yellow, and any attempted assignment or delegation without such prior written consent shall be null and void; provided further that ~~it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended~~ Purchaser (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from Purchaser remaining liable for its obligations hereunder in the event such obligations are not performed in accordance with their terms) may assign any of its rights or ~~grant~~ obligations hereunder to ~~such Federal Reserve Bank~~ any of its Affiliates without the ~~rights~~ consent of ~~a Lender hereunder absent foreclosure of such pledge~~any Person. (b) ~~From time to~~ At any time following entry of the Sale Order and prior to the Closing, Purchaser shall be entitled to designate, by written notice to Sellers, one or more Affiliates to (i) purchase the Acquired Assets and pay the corresponding Purchase Price amount or (ii) assume the Assumed Liabilities (any such Affiliates that shall be designated in accordance with this clause, a “Designated Purchaser”). In addition, and for the avoidance of doubt, a Designated Purchaser shall be entitled to perform any other covenants or agreements of Purchaser under this Agreement. Further notwithstanding anything in this Agreement to the contrary, Purchaser in its sole discretion may, by written notice delivered to Sellers no later than five (5) business days prior to the Closing Date, ~~each Lender may assign~~ designate a Designated Purchaser to ~~one or more Eligible Assignees all or~~ take title to any ~~portion of its rights and obligations under~~ Acquired Owned Real Property. Subject to this paragraph, this Agreement ~~(including all or a portion of its Commitment, the Advances owing to it~~ and the ~~Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender,~~ provisions hereof shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion binding upon each of such ~~assigning Lender’s Commitments and/or Advances owing~~ parties, their successors and permitted assigns and Purchaser shall remain primarily liable until the transfer to any such ~~assigning Lender that is equivalent to less than $3,000,000,~~ Designated Purchaser and ~~(iv)~~ the ~~effective date~~ satisfaction by such Designated Purchaser of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further related obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderor other Liabilities hereunder. (c) ~~By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder~~ Purchaser acknowledges and agrees ~~that: (i) other than~~ to comply with the ~~representation and warranty that it is the legal and beneficial owner~~ anti-collusion requirements of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders Bidding Procedures Order and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityBankruptcy Code. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Asset Purchase Agreement (XPO, Inc.)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is and the Co-Borrowers are a Party will be binding upon and inure to the exclusive benefit of Borrower, the ~~Administrative Agent~~Co-Borrowers, ~~each of~~ the ~~Lenders~~Creditors, and their respective successors and assigns, except that Borrower and the Co-Borrowers may not assign ~~its~~ their respective rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its ~~Note~~ Notes with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of ~~such Note~~ its Notes must be within the control of such Lender). Any Lender may at any time pledge its ~~Note~~ Notes or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to ~~time following the Closing Date~~time, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all~~ Pro Rata Share of either or ~~a portion~~ both of ~~its Commitment~~the Commitments, ~~the Advances owing to it and the Note or Notes held by it);~~ provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by each of the Administrative Agent and (if no Event of Default then exists) Borrower and the Co-Borrowers (~~neither~~ none of which approvals shall be unreasonably withheld or delayed), (ii) in the case of assignments of a Pro Rata Share of the Revolving Commitment, such Eligible Assignee, if not then a Revolving Lender or an Affiliate of the assigning Lender, shall be approved by each of the Administrative Agent and (if no Event of Default then exists) Borrower and the Co-Borrowers (none of which approvals shall be unreasonably withheld or delayed), (iii) such assignment shall be evidenced by an Assignment ~~and Acceptance~~Agreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (~~iii~~iv) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Pro Rata Share of the relevant Commitment by the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ Pro Rata Share that is ~~equivalent to~~ less than $~~3,000,000~~1,000,000, ~~and~~ (ivv) the effective date of any such assignment shall be as specified in the Assignment ~~and Acceptance~~Agreement, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date the Administrative Agent has received the Assignment Agreement, (vi) such assignment shall be of a constant and ~~Acceptance~~non-varying percentage of the Pro Rata Share of the assigning Lender, and (vii) the assignor Lender shall have paid a $3500 assignment fee to the Administrative Agent. Upon the effective date of such Assignment ~~and Acceptance~~Agreement, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances therein~~ Pro Rata Share set forth therein and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower ~~agrees~~ and the Co-Borrowers agree that it they shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s~~ appropriate Notes) to such assignee Lender, ~~Notes~~ a Committed Advance Note evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share of the appropriate Commitment and a Competitive Revolving Note, and to the assigning Lender, ~~Notes~~ a Committed Advance Note evidencing the remaining balance Pro Rata Share of the ~~Commitments and/or Advances~~ appropriate Commitment retained by the assigning Lender. (c) By executing and delivering an a Assignment ~~and Acceptance~~Agreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or its Subsidiaries or the performance by Borrower and its Subsidiaries of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment ~~and Acceptance~~Agreement; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Assignment ~~and Acceptance~~ Agreement delivered to it and a register (the “"Register”") of the names and address of each of the Lenders and the Pro Rata Share ~~of the Commitments~~ held by each Lender, giving effect to each Assignment ~~and Acceptance~~Agreement. The Register shall be available during normal business hours for inspection by ~~Borrower~~ Borrower, the Co-Borrowers or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the ~~Administrative Agent~~ Co-Borrowers and the ~~Lenders~~ Creditors shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata ~~Shares of the Revolving Facility~~ Share listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Pro Rata Share shall be effective, in each case unless and until an a Assignment ~~and Acceptance~~ Agreement effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share ~~of the Revolving Facility~~ shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata ~~Share of the Revolving Facility~~Share. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (including another Lender) in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Pro Rata Share (or in Competitive Advances made by that Lender); provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.7, ~~3.6~~3.8, 11.11 and ~~11.21~~ 11.22 but only to the extent that the cost of such benefits to Borrower and the Co-Borrowers does not exceed the cost which Borrower and the Co-Borrowers would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, (iv) Borrower, the Co-Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share ~~of the Revolving Facility~~ as it then exists and shall not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~Commitments, or in the granting Lender~~’s rights and obligations hereunder~~'s Pro Rata Share, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend ~~any Amortization Date, any applicable~~ the Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release ~~any Guarantor from its~~ the Guaranty, or (E) change the definition of "Requisite Lenders." (f) ~~Borrower agrees~~ Notwithstanding anything in this Section to the contrary, the rights of the Lenders to make assignments of, and grant participations in, their Pro Rata Shares of the Commitments shall be subject to the approval of any Gaming Board, to the extent required by applicable Gaming Laws, and to compliance with applicable securities laws, if any. (g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to one or more SPC's established or maintained by that Granting Lender the option to provide all or any part of any Loan or Advance that such Granting Lender would otherwise be obligated to make pursuant to Sections 2.1, 2.2, 2.3 or 2.6, provided that (i) nothing herein shall constitute a commitment to make any Loan by any SPC, (ii) if a 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, and (iii) the rights of any such SPC shall be derivative of the rights of the Granting Lender, and each SPC shall be subject to all of the restrictions upon the ~~occurrence~~ Granting Lender herein contained. Each SPC shall be conclusively presumed to have made arrangements with its Granting Lender for the exercise of voting and ~~during~~ other rights hereunder in a manner which is acceptable to the ~~continuance of any Event of Default~~SPC, and the Administrative Agent, the other Creditors, Borrower, the Co-Borrowers and each ~~Lender~~ other Party shall be entitled to ~~assign~~ rely upon and deal solely with the Granting Lender with respect to Loans and Advances made by or through its ~~rights~~ SPC. The making of a Loan by a SPC hereunder shall utilize the Commitments of the Granting Lender (and, if such Loan is a Competitive Advance, shall be deemed to utilize the Revolving Commitments of the Lenders) to the same extent, and ~~under~~ as if, such Loan were made by the ~~Loan Documents,~~ Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or ~~grant participation interests in its rights~~ similar payment obligation under this Agreement (all liability for which shall remain with the related 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 ~~Loan Documents~~payment in full of all outstanding senior indebtedness of any SPC, to it will not institute against, or join any ~~Person~~other person in instituting against, ~~in whole~~ such SPC any bankruptcy, reorganization, arrangement, insolvency or in liquidation proceedings or similar proceedings under the laws of the United States or any ~~part~~ State thereof, provided that the Granting Lender for each SPC hereby agrees to indemnify, save, and hold harmless each other party hereto for any loss, cost, damage and expense arising out of their inability to institute any such proceeding against its SPC. In addition, notwithstanding ~~any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document~~ anything to the ~~contrary~~contrary contained in this Section 11.8, ~~except that, other than~~ any SPC may (i) ~~assignments by~~ with notice to, but without the prior written consent of, Borrower, the Co-Borrowers or the Administrative Agent and without paying any processing fee therefor, assign all or a ~~Lender~~ portion of its interests in any Loans to ~~an Affiliate of such~~ its Granting Lender or to ~~another~~ any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans (but nothing contained herein shall be construed in derogation of the obligation of the Granting Lender to make Loans hereunder), provided that neither the consent of the SPC or of any such assignee shall be required for amendments or waivers of provisions of the Loan Documents except for those amendments or waivers for which the consent of participants is required under Section 11.8(e)(vi), and (ii) ~~pledges~~ disclose on a confidential basis (in the same manner described in ~~the last sentence~~ Section 11.14) any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of ~~subsection (a) above~~a surety, ~~no assignment shall be made without the approval of the Administrative Agent~~guarantee or credit or liquidity enhancement to such SPC.

Appears in 1 contract

Sources: Loan Agreement (MGM Mirage)

Appears in 1 contract

Sources: 364 Day Loan Agreement (MGM Mirage)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which each Borrower is a Party will be binding upon and inure to the benefit of ~~Borrower~~Borrowers, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that no Borrower may ~~not~~ assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge any of its ~~Note~~ Notes or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more ~~Eligible Assignees~~ Persons all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its Commitment,~~ the ~~Advances owing to it and the Note or Notes held by it)~~Commitments; provided ~~that, subject to subsection (f) below,~~ that (i) such ~~Eligible Assignee~~Person, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and ~~Borrower~~ (if no Event of Default then exists) the Borrowers (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitments Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitments of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s~~ the Commitments ~~and/or Advances owing to such assigning Lender~~ that is equivalent to less than $~~3,000,000,~~ 5,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitments Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitments Assignment and Acceptance. Upon the effective date of such Commitments Assignment and Acceptance, the ~~Eligible Assignee~~ Person named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments ~~and/or Advances~~ therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Each Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to each Borrower of ~~such Lender’s Notes~~its Note) to such assignee Lender, Notes evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share of the Commitments, and to the assigning Lender, Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an a Commitments Assignment and Acceptance, the ~~Eligible Assignee~~ Person constituting the assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share of the Commitments being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ the Borrowers or the performance by ~~Borrower~~ the Borrowers of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitments Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Commitments Assignment and Acceptance delivered to it and a register (the “"Register”") of the ~~names~~ name and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Commitments Assignment and Acceptance. The Register shall be available during normal business hours for inspection by any Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitments Assignment and Acceptance executed by any Lender and an ~~Eligible Assignee~~assignee, and receipt of an assignment fee of $3,500 from such Lender or ~~Eligible Assignee~~assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to ~~Borrower~~ the Borrowers and the Lenders a revised Schedule 1.1 giving effect thereto. Each Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata ~~Shares~~ Share of the ~~Revolving Facility~~ Commitments listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Pro Rata Share of the Commitments shall be effective, in each case unless and until an a Commitments Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the ~~Revolving Facility~~ Commitments shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the ~~Revolving Facility~~Commitments. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Pro Rata Share of the Commitments; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.6, ~~3.6~~3.7, 3.8, 11.11 and ~~11.21~~ 11.22 but only to the extent that the cost ~~of such benefits~~ to ~~Borrower~~ the Borrowers does not exceed the cost which ~~Borrower~~ the Borrowers would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation, (iv) ~~Borrower~~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 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share of the ~~Revolving Facility~~ Commitments as it then exists and shall not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~Commitments, or in the granting Lender~~’s rights and obligations hereunder~~'s Pro Rata Share of the Commitments, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend ~~any Amortization Date, any applicable~~ the Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the ~~Notes,~~ Notes or (D) release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Revolving Loan Agreement (Day Runner Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the~~ Administrative Agent, ~~each of the Lenders,~~ Lenders and their respective successors and assigns, except ~~that~~ that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to~~ Lenders and any ~~requirement that disposition of~~ such ~~Note must~~ attempted assignment shall be ~~within the control of such Lender)~~void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve ~~Bank~~Lender, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve ~~Bank~~ Lender the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of its ~~Commitment, the Advances owing to it and the Note or Notes held by it)~~Commitment and/or Extensions of Credit; ~~provided that, subject to subsection (f) below,~~ PROVIDED that (i) such ~~Eligible Assignee~~assignment, if not ~~then~~ to a Lender or an Affiliate of the assigning Lender, shall be ~~approved~~ consented to by Borrower at all times other than during the existence of a Default and Administrative Agent and Letter of Credit Issuer (which approval of Borrower ~~(neither of which approvals~~ shall not be unreasonably withheld or delayed), (ii) ~~such assignment shall be evidenced by an Assignment and Acceptance,~~ a copy of ~~which~~ a duly signed and completed Notice of Assignment and Acceptance shall be ~~furnished~~ delivered to ~~the~~ Administrative ~~Agent as hereinbelow provided~~Agent, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is~~ Pro Rata Share equivalent to less than ~~$3,000,000~~the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Notice of Assignment and Acceptance, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Notice of Assignment and Acceptance. Upon ~~the effective date~~ acceptance by Administrative Agent of such Notice Assignment and ~~Acceptance~~Acceptance and consent thereto by Administrative Agent and Letter of Credit Issuer and payment of the requisite fee described below, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~any Note) to such assignee Lender, one or more Notes evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share, and to the assigning ~~Lender~~Lender if requested, one or more Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. Administrative Agent's consent to and acceptance of any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Notice of Assignment and ~~Acceptance executed by any Lender and an Eligible Assignee~~Acceptance, and receipt of an assignment fee of $3,500 from such ~~Lender or~~ Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners Assignee (including Affiliates of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facilityassigning Lenders). (ed) Each Lender may from time to time grant participations to one or more ~~banks or~~ other ~~financial institutions in or to~~ Person (including another Lender) all or a any portion of its ~~rights~~ Pro Rata Share of its Commitment and/or ~~obligations under this Agreement~~Extensions of Credit; ~~provided, however,~~ PROVIDED that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6, 11.11 and 11.21~~ SECTION 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation) and subject to SECTIONS 10.05 AND 10.06, (iv) Borrower, ~~the~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation ~~interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and~~ shall not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto),~~ Commitment or in ~~the~~ granting Lender~~’s rights and obligations hereunder~~'s Pro Rata Share, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan ~~Documents other than those~~ Documents; PROVIDED that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter which (A) ~~extend any Amortization Date, any applicable Maturity~~ extends the Termination Date as to such participant or any other date upon which any payment of money is due to ~~the Lenders~~such participant, (B) ~~reduce~~ reduces the rate of interest ~~on the Notes~~owing to such participant, any fee or any other monetary amount ~~payable~~ owing to ~~the Lenders~~such participant, or (C) ~~reduce~~ reduces the amount of any installment of principal ~~due under the Notes, or (D) release any Guarantor from its Guaranty~~owing to such participant. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Longs Drug Stores Corp)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and shall inure to the benefit of ~~Borrower~~the Company, the ~~Administrative Agent, each of the Lenders,~~ Creditor and their respective successors and assigns, ~~except~~ PROVIDED, that ~~Borrower may~~ the Company shall not have the right to assign or transfer its rights or obligations hereunder ~~or thereunder or any interest herein or therein without~~ except with the prior written consent of ~~all~~ the ~~Lenders~~Creditor. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender The Creditor may assign ~~to one or more Eligible Assignees all or any portion of~~ its rights and obligations under this Agreement (including all or a portion of ~~its Commitment,~~ the Commitment and the Advances at the time owing to it ~~and~~ without the ~~Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate~~ consent of the ~~assigning Lender, shall be approved by~~ Company (the ~~Administrative Agent~~ "SYNDICATION"). The Creditor may request the Company and ~~Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished~~ Nextel International to ~~the Administrative Agent as hereinbelow provided, (iii) except~~ assist in the ~~case of an assignment~~ Syndication as contemplated by this Section. 94 In addition to ~~an Affiliate~~ and without limiting the foregoing, the Creditor may, without the consent of the ~~assigning Lender~~Company, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant sell participations to one or more banks or other ~~financial institutions~~ entities (a "PARTICIPANT") in ~~or to~~ all or a portion of ~~its~~ the Creditor's rights ~~and/or~~ and obligations under this ~~Agreement~~Agreement (including all or a portion of the Commitment and the Advances owing to it); ~~provided, however,~~ PROVIDED that (i) ~~such Lender’s~~ the Creditor's obligations under this Agreement shall remain unchanged, (ii) ~~such Lender~~ the Creditor shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders Company shall continue to deal solely and directly with ~~such Lender~~ the Creditor in connection with ~~such Lender’s~~ the Creditor's rights and obligations under this Agreement~~, (v)~~ . Any agreement or instrument pursuant to which the Creditor sells such a participation ~~interest~~ shall ~~be expressed as a percentage of~~ provide that the ~~granting Lender’s Pro Rata Share of~~ Creditor shall retain the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due sole right to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement. Each of the ~~Loan Documents~~Company and Nextel International agrees to cooperate with the Creditor in connection with any Syndication. Such cooperation will include, ~~to any Person~~if requested by the Creditor, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) ~~assignments by~~ making senior officers of the Company and Nextel International available for a ~~Lender to an Affiliate of such Lender or to another Lender or~~ meeting with prospective assignees, the Creditor and its agents, and (ii) ~~pledges described~~ providing such other assistance as may be reasonably requested by the Creditor and such agents (including providing information to and responding to questions from prospective assignees with respect to the operations, business plans and other matters relating to the Company's and each other Credit Party's business on a timely basis and in any manner reasonably requested by the ~~last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~Creditor).

Appears in 1 contract

Sources: Equipment Financing Agreement (Nextel International Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its ~~Note~~ Notes with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such ~~Note~~ Notes must be within the control of such Lender). Any Lender may at any time pledge its ~~Note~~ Notes or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its Commitment,~~ the ~~Advances owing to it and the Note or Notes held by it)~~Commitments; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and (if no Event of Default then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such ~~assignment~~ assign ment shall be evidenced by an a Commitments Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitments of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s~~ the Commitments ~~and/or Advances owing to such assigning Lender~~ that is equivalent to less than $~~3,000,000,~~ 5,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitments Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitments Assignment and Acceptance. Upon the effective date of such Commitments Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments ~~and/or Advances~~ therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s~~ its Notes) to such assignee Lender, Notes evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share of the Commitments, and to the assigning Lender, Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an a Commitments Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it the assigning Lender is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Share of the Commitments being assigned thereby free and clear of any Lien or other adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitments Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Commitments Assignment and Acceptance delivered to it and a register (the “"Register”") of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Commitments Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitments Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect ~~thereto~~there to. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata ~~Shares~~ Share of the ~~Revolving Facility~~ Commitments listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Pro Rata Share of the Commitments shall be effective, in each case unless and until an a Commitments Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the ~~Revolving Facility~~ Commitments shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the ~~Revolving Facility~~Commitments. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Pro Rata Share of the Commitments; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.7, ~~3.6~~3.8, 11.11 and ~~11.21~~ 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the ~~participation~~participa tion, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share of the ~~Revolving Facility~~ Commitments as it then exists and shall not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~Commitments, or in the granting Lender~~’s rights and obligations hereunder~~'s Pro Rata Share of the Commitments, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend ~~any Amortization~~ the Line A Maturity Date, ~~any applicable~~ the Line B Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the ~~Notes,~~ Notes or (D) release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Wild Oats Markets Inc)

Binding Effect; Assignment. ~~(a)~~ This ~~Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and~~ Warrant shall inure to the benefit of ~~Borrower,~~ and be binding upon the ~~Administrative Agent, each of~~ Company and the ~~Lenders,~~ Holder and their respective ~~successors~~ successors, heirs, legal representatives and permitted assigns. This Warrant and the Warrant Shares (collectively, ~~except that Borrower~~ "Securities") may only be disposed of pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from or in a transaction not ~~assign its rights hereunder or thereunder or~~ subject to the registration requirements of the Securities Act, and in compliance with any ~~interest herein or therein without~~ applicable federal and state securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement, transfer may only be made with the prior written consent of ~~all~~ the ~~Lenders. Each Lender represents that it is~~ Company, which shall not ~~acquiring its Note with a view~~ be unreasonably withheld, and the Company may require the transferor to provide to the ~~distribution thereof within~~ Company an opinion of counsel selected by the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitmenttransferor, the ~~Advances owing to it~~ form and ~~the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate~~ substance of ~~the assigning Lender,~~ which opinion shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished reasonably satisfactory to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth andCompany, to the ~~extent~~ effect that such transfer does not require registration of such ~~Commitments and/or Advances,~~ transferred securities under the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this AgreementSecurities Act; provided, however, that ~~(i) such Lender’s obligations under this Agreement shall remain unchanged~~notwithstanding the foregoing, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the no consent of the ~~holder of such participation interest~~ Company shall ~~not~~ be required for ~~amendments~~ the assignment or ~~waivers~~ transfer of ~~provisions of the Loan Documents other than those which (A) extend any Amortization Date~~rights hereunder by a Holder to such assignor's or transferor's partners, ~~any applicable Maturity Date~~ shareholders or members or retired partners or former shareholders or members, if any, or for any other ~~date upon which any payment of money is due~~ assignment or transfer to the ~~Lenders~~spouse, (Bancestors, lineal descendants or siblings of such assignor or transferor, provided the transferee(s) ~~reduce the rate of interest on the Notes, any fee or any other monetary amount payable~~ certify to the ~~Lenders, (C~~Company that each is an "accredited investor" within the meaning of Rule 501(a) ~~reduce~~ under the ~~amount~~ Securities Act and that it is acquiring the Securities solely for investment purposes. The Company shall register the transfer of any ~~installment~~ portion of ~~principal due under~~ this Warrant, upon surrender of this Warrant with the ~~Notes~~Form of Assignment attached hereto duly completed and signed, to the Company's transfer agent or to the Company at the office specified in Section 8.2. Upon any such transfer, a new warrant to purchase Common Stock, in substantially the form of this Warrant (~~D) release~~ any ~~Guarantor from its Guaranty. (f) Borrower agrees that upon~~ such new warrant, a "New Warrant"), evidencing the ~~occurrence and during the continuance~~ portion of ~~any Event of Default, each Lender~~ this Warrant so transferred shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document issued to the ~~contrary~~transferee and a New Warrant evidencing the remaining portion of this Warrant not so transferred, ~~except that~~if any, ~~other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment~~ shall be ~~made without~~ issued to the ~~approval of the Administrative Agent.~~transferring Holder. The

Appears in 1 contract

Sources: Warrant Agreement (Aequitas Capital Management Inc.)

Binding Effect; Assignment. (a) This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of the Borrower, the Administrative ~~Agent,~~ Agent and each ~~of the Lenders~~Lender, and their respective successors and permitted assigns, except that the Borrower ~~may~~ shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of ~~all~~ the Administrative Agent and the Lenders~~. Each Lender represents that it is not acquiring its Note with a view to~~ , and any assignment by the ~~distribution thereof within the meaning~~ Borrower in violation of ~~the Securities Act of 1933, as amended~~ this Section 9.8 shall be null and void. (~~subject to any requirement that disposition of such Note must be within the control of such Lender).~~ b) Any Lender may at any ~~time pledge its Note~~ time, without the consent of the Administrative Agent, assign all or any ~~other instrument evidencing~~ portion of its rights ~~as a Lender~~ under this Agreement and any Loan Note to a Federal Reserve Bank~~, but~~ ; provided that no such assignment or pledge shall release ~~that~~ the transferor Lender from its obligations ~~hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge~~hereunder. (bc) ~~From time~~ Subject to ~~time following~~ the ~~Closing Date~~terms of the Acknowledgment Agreement, each Lender may assign to one or more ~~Eligible Assignees~~ banks or other entities all or any part or portion of its rights and obligations ~~under this Agreement~~ hereunder (including ~~all~~ its Loan Notes or ~~a portion~~ its Advances) with the prior written consent of ~~its Commitment~~(x) the Borrower (such consent not to be unreasonably withheld, conditioned, or delayed), provided that the ~~Advances owing~~ 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, and provided further that no consent of the ~~Note or Notes held by it); provided that, subject~~ Borrower shall be required for an assignment to ~~subsection (f) below, (i) such Eligible Assignee, if not then~~ a Lender or an Affiliate of a Lender or, if an Event of Default has occurred and is continuing and (y) the ~~assigning Lender~~Administrative Agent; provided that (i) each party to such assignment shall execute and deliver an Assignment and Assumption to the Administrative Agent, and (ii) shall be ~~approved by~~ to (x) a bank, other financial institution or lender which is reasonably acceptable to the Administrative Agent, (y) a “qualified institutional buyer”, as defined in Rule 144A under the Securities Act of 1933, as amended, reasonably acceptable to the Administrative Agent or (z) any other Person (other than the Borrower a natural Person or a holding company, investment vehicle or trust for, or owned and ~~Borrower~~ operated by or for the primary benefit of natural persons or any Affiliates of the foregoing) reasonably satisfactory to the Administrative Agent. Upon, and to the extent of, any assignment (~~neither~~ unless otherwise stated therein) made by any Lender hereunder, the assignee or purchaser of ~~which approvals shall be unreasonably withheld or delayed), (ii)~~ such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender hereunder for all purposes of this ~~Agreement~~Agreement and shall have all the rights, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights benefits and obligations ~~hereunder being assigned thereby free and clear of any adverse claim,~~ (including the ~~assigning Lender has made no representation or warranty and assumes no responsibility with respect~~ obligation to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered provide documentation pursuant to Section ~~7.1 and such other documents and information~~ 2.14(g)) of a Lender hereunder. The Administrative Agent, acting solely for this purpose as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all an agent of the ~~obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent~~ Borrower, shall maintain at ~~the Administrative Agent’s Office a copy~~ one of ~~each Assignment and Acceptance delivered to it and~~ its offices a register (the “Register”) for the recordation of the names and ~~address of each~~ addresses of the Lenders and ~~the Pro Rata Share~~ outstanding principal amounts (and accrued interest) of the ~~Commitments held by each Lender, giving effect~~ Advances owing to each ~~Assignment~~ Lender pursuant to the terms hereof from time to time and ~~Acceptance~~any assignment of outstanding Advances. The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive absent manifest error, and ~~receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee,~~ the ~~Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto.~~ Borrower, the Administrative Agent and the Lenders shall ~~deem and~~ treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each ~~case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and~~ Person whose name is recorded in the Register ~~as provided above. Prior to such recordation, all amounts owed with respect~~ pursuant to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be ~~conclusive~~ available for inspection by the Borrower and ~~binding on~~ any ~~subsequent holder~~Lender, ~~assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may~~ at any reasonable time and from time to time ~~grant participations~~ upon reasonable prior notice. Any Lender may sell participation interests in its Advances and obligations hereunder (each such recipient of a participation a “Participant”); provided that after giving effect to ~~one~~ the sale of such participation, such Lend▇▇’▇ ▇bligations hereunder and rights to consent to any waiver hereunder or ~~more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement~~ amendment hereof shall remain unchanged, ~~(ii)~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ~~(iii) the participating banks or other financial institutions shall not be a~~ all amounts payable to such Lender hereunder ~~for~~ and all rights to consent to any ~~purpose except,~~ waiver hereunder or amendment hereof shall be determined as if ~~the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of~~ such ~~benefits to Borrower does~~ Lend▇▇ ▇▇▇ not ~~exceed the cost which Borrower would have incurred in respect of the Lender granting~~ sold such participation ~~absent~~ interest, and the ~~participation, (iv) Borrower,~~ Borrower and the Administrative Agent ~~and the other Lenders~~ shall continue to deal solely and directly with such Lender and not be obligated to deal with such 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 outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction 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 -87- interest in any Advances or its other obligations under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such Advances or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Proposed Treasury Regulations Section 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. For the avoidance of doubt, the Administrative Agent shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.14(g) (it being understood that the documentation required under Section 2.14(g) shall be delivered to the participating Lender)), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.14 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. Notwithstanding any other provision of this Agreement to the contrary, a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to (i) a security trustee in connection with the funding by such ~~Lender’s rights and~~ Lender of Advances or (ii) a Federal Reserve Bank to secure obligations to such Federal Reserve Bank, in each case without the consent of the Borrower; provided that no such pledge or grant shall release such Lender from its obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (UWM Holdings Corp)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which ~~Borrower is~~ the Loan Parties are a ~~Party~~ party are and will be binding upon and inure to the benefit of ~~Borrower~~the Loan Parties, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that ~~Borrower~~ the Loan Parties may not assign ~~its~~ their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders, and any purported assignment without such consent shall be null and void. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge or assign a security in all or any portion of its Note or any other instrument evidencing its rights as a Lender under this Agreement to secure obligations of such Lender, including without limitation (i) any pledge or assignment to secure obligations to a Federal Reserve Bank, ~~but~~ and (ii) in the case of a Lender that is a Related Fund, any pledge or assignment to any holders of obligations owed, or security issued, by such Lender, including to any trustee for, or any other representative of such holders, provided that no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank or other pledgee or assignee the rights of a Lender hereunder absent foreclosure of such ~~pledge~~pledge or assignment. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion of its~~ Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate or Related Fund of ~~the assigning~~ a Lender, shall ~~be approved~~ require approval by the Administrative Agent and ~~Borrower~~ (if no Event of Default then exists) Parent (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitments Assignment and Acceptance, a copy of ~~which~~ which, together with any Notes subject to such assignment, shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate or Related Fund of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ share of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ the Commitment that is equivalent to less than $~~3,000,000~~2,000,000, (iv) the assignment shall be of a constant, and not a varying, percentage of the Assignor's rights and obligations under this Agreement, and (ivv) the effective date of any such assignment shall be as specified in the Commitments Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitments Assignment and ~~Acceptance~~Acceptance unless otherwise agreed by the Administrative Agent. Upon the effective date of such Commitments Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with ~~the Commitments and/or Advances~~ a Percentage and Commitment amount as therein (and herein, if such Eligible Assignee was already a Lender) set forth and, to the extent of ~~such Commitments and/or Advances~~the portion of the Commitment assigned, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver ~~(against delivery by the assigning Lender to Borrower of such Lender’s Notes)~~ to such assignee Lender, Notes evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Commitment, and to the assigning Lender, Notes evidencing the remaining balance of ~~the Commitments and/or Advances retained by the assigning~~ such Lender's Commitment. (c) By executing and delivering an a Commitments Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) ~~other than~~ the ~~representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of~~ Administrative Agent has not made any ~~adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the ~~assigning Lender~~ Administrative Agent has not made no any representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ the Loan Parties or the performance by ~~Borrower~~ the Loan Parties of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitments Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Commitments Assignment and Acceptance delivered to it and a register (the “"Register”") of the names and address of each of the Lenders and the ~~Pro Rata Share of the Commitments~~ Percentage and Commitment amount held by each Lender, giving effect to each Commitments Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitments Assignment and Acceptance executed by any Lender and an Eligible ~~Assignee~~Assignee and the Notes subject to such assignment, and receipt of an assignment fee of $3,500 from such Lender or Eligible ~~Assignee~~Assignee (which fee shall be imposed only once with respect to simultaneous transfers on a single day to different Affiliates or Related Funds of such Lender), the Administrative Agent shall, promptly following the effective date thereof, upon the request of any party, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the ~~Pro Rata Shares of the Revolving Facility~~ Commitments listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Commitment shall be effective, in each case unless and until an a Commitments Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable ~~Pro Rata Share of the Revolving Facility~~ Commitment shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of ~~the corresponding Pro Rata Share of the Revolving Facility~~such Commitment. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (including another Lender but excluding an Employee Plan) in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Commitment; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.7, ~~3.6~~3.8, 11.11 and ~~11.21~~ 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred ~~in respect of the Lender granting such participation~~ absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender~~’s Pro Rata Share of the Revolving Facility~~ 's Commitment as it then exists and shall not ~~restrict an increase in the Revolving Facility (~~afford such participant any rights or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of privileges under the Loan Documents ~~other than those which~~ except as provided in clause (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (biii) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Secured Term Loan Agreement (BioMed Realty Trust Inc)

Binding Effect; Assignment. ~~(a)~~ a. This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding ~~upon~~ upon, and inure to the benefit ~~of Borrower~~of, the ~~Administrative Agent, each of the Lenders,~~ parties hereto and their respective permitted successors and permitted assigns~~, except that Borrower~~ . b. The Seller may not assign its rights or obligations hereunder or ~~thereunder~~ in connection herewith or any interest herein or ~~therein~~ under any other Program Document or with respect to any Purchased Receivables or the Proceeds thereof without the Purchaser's prior written ~~consent of all the Lenders. Each Lender represents that it~~ consent. c. The Purchaser may not (except as is ~~not acquiring its Note~~ appropriate in connection with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing Takeout Transaction) assign its rights ~~as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its~~ or obligations hereunder or ~~grant to such Federal Reserve Bank~~ in connection herewith or any interest herein or under any other Program Documents without the ~~rights of a Lender hereunder absent foreclosure of such pledge~~Seller's prior written consent. ~~(b) From time~~ d. The Purchaser, as the owner of the Purchased Receivables, shall have the right to ~~time following the Closing Date~~sell, ~~each Lender may~~ transfer, convey and assign to ~~one or more Eligible Assignees all or~~ any ~~portion~~ Person, as a part of ~~its rights~~ and ~~obligations under this Agreement (including~~ in connection with a Takeout Transaction, all or a portion of ~~its Commitment~~the Purchaser's right, title and interest in the ~~Advances owing to it~~ Purchased Receivables and the ~~Note or Notes held by it)~~Proceeds thereof; ~~provided that~~PROVIDED, ~~subject to subsection (f) below~~HOWEVER, ~~(i) such Eligible Assignee, if not then a Lender or an Affiliate of~~ that the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment Purchaser shall not assign ~~a portion~~ to any Person the benefit of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000,~~ the representations and ~~(iv)~~ warranties of the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and AcceptanceSeller, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of Seller Parent or any ~~adverse claim, the assigning Lender has made no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made~~ Adviser contained in ~~or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of~~ this Agreement or any other ~~Loan~~ Program Document; . The Purchaser shall give the Seller thirty (ii30) days' advance notice of any sale, transfer, conveyance or assignment of the ~~assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower~~ Purchased Receivables or the ~~performance by Borrower of~~ Proceeds thereof. Notwithstanding the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assigneeforegoing, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender Purchaser may ~~from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; 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~~ pledge all of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement ~~and the Loan Documents, to any Person, in whole~~ or ~~in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in~~ any other ~~Loan~~ Program Document and all of its rights with respect to the ~~contrary, except that, other than (i) assignments~~ Purchased Receivables to a major financial institution as security for money borrowed by ~~a Lender to an Affiliate of such Lender or to another Lender~~ the Purchaser or (ii) ~~pledges described~~ make representations and warranties to another Person, as a part of and in connection with a Takeout Transaction, which are similar to the ~~last sentence~~ representations and warranties agreed to by the Seller in this Agreement or any other Program Document. e. In the event of ~~subsection (a~~any sale, transfer, conveyance or assignment of the Purchased Receivables or the Proceeds thereof pursuant to Section 7.7(d) above, ~~no assignment~~ the Seller shall ~~be made without~~ execute and deliver such instruments and documents and shall take all such actions as the ~~approval~~ Purchaser or any Master Trust shall reasonably deem necessary in order to confer upon any such Person ownership of the ~~Administrative Agent~~Purchased Receivables, including, without limitation, using its commercially reasonable efforts to cause the reapproval of each Underwriting Agreement (in the manner required by the Investment Company Act) by the Board of Directors of the related Fund at its next regularly scheduled meeting if such transferee shall deem such action necessary to avoid the termination of such agreements.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Franklin Resources Inc)

Binding Effect; Assignment. ~~(a)~~ 12.8.1 This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the Administrative~~ Agent, each of ~~the~~ Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the~~ Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a ~~Lender~~ lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that ~~Lender~~ lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. ~~(b)~~ 12.8.2 From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its~~ the Revolving Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by ~~the Administrative~~ Agent ~~and Borrower (neither~~ and, provided no Default or Event of Default then exists, Borrower, which ~~approvals~~ approval(s) shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed), ; (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to ~~the Administrative~~ Agent as ~~hereinbelow provided,~~ provided below; (iii) except in the case of an assignment (a) to an Affiliate of the assigning ~~Lender,~~ Lender or to another Lender or (b) of the entire remaining ~~rights and obligations~~ Revolving Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ the Revolving Commitment that is equivalent to less than $~~3,000,000, and~~ 5,000,000.00; (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) ~~Banking~~ Business Days after the date ~~the Administrative~~ Agent has received the Commitment Assignment and Acceptance; and (v) such Eligible Assignee shall execute an Alternative Dispute Resolution Agreement, in form and substance satisfactory to Agent. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share of the Revolving Commitment therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~its Note(s)) to such assignee Lender, ~~Notes~~ Note(s) evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share of the Revolving Commitment, and to the assigning Lender, ~~Notes~~ Note(s) evidencing the ~~remaining balance of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Loan and Security Agreement (Aerocentury Corp)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of Borrower, the ~~Administrative Agent, each of~~ Agent and the ~~Lenders,~~ Banks and their respective successors and assigns, except that Borrower ~~may~~ shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)Banks. Any ~~Lender~~ Bank may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other ~~financial institutions in or to~~ entities ("Purchasers") all or ~~a portion~~ any part of its Loans, Commitment and its rights ~~and/or~~ and obligations under its Note and under this Agreement. Such assignment shall be in substantially the form of Exhibit C. Each such assignment shall either be in an amount equal to the entire applicable Commitment and Loans of the assigning Bank or (unless each of Borrower and the Agent otherwise consents) be in an aggregate amount not less than $5,000,000. Unless an Event of Default has occurred and is continuing, the consent of Borrower shall be required prior to an assignment becoming effective with respect to a Purchaser which is not a Bank or an Affiliate thereof. Such consent shall not be unreasonably withheld. The consent of the Agent shall be required prior to an assignment becoming effective. Notwithstanding the foregoing provisions of this Section 10.8(B), any Bank may at any time assign all or any portions of its Loans and Note to a Federal Reserve Bank (but no such assignment shall release any Bank from any of its obligations hereunder). Upon delivery to the Agent and Borrower of (i) an assignment, together with any consent required by this Section 10.8, and (ii) payment of a $3,500 fee to the Agent for processing such assignment, such assignment shall become effective on the effective date specified in such assignment. On and after the effective date of such assignment, such Purchaser shall for all purposes be a Bank party to this Agreement and shall have all the rights and obligations of a Bank under this Agreement, to the same extent as if it were an original party hereto, and no further consent or action by Borrower, the Agent or any other Bank shall be required to release the transferor Bank with respect to the percentage of the Loans and Commitment assigned to such Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to this Section 10.8, the transferor Bank and Borrower shall make appropriate arrangements so that a replacement Note is issued to such transferor Bank and a new Note or, as appropriate, a replacement Note is issued to such Purchaser, in each case in principal amounts reflecting its pro rata share of the Aggregate Commitment. Borrower authorizes each Bank to disclose to any Participant or Purchaser or any other entity acquiring an interest in this Agreement or its Note by operation of law (each a "Transferee") and any prospective Transferee any and all information in such Bank's possession concerning the creditworthiness of Borrower and its Subsidiaries. This Agreement and all covenants, representations and warranties made herein and/or in any of the other Financing Documents shall survive the making of the Loans, the execution and delivery of the Financing Documents and shall continue in effect so long as any amounts payable under or in connection with any of the Financing Documents or any other Indebtedness of Borrower to the Banks remains unpaid or any Commitment remains outstanding; provided, however, that ~~(i) such Lender’s obligations under this Agreement~~ Section 10.6 shall survive and remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 in full force and ~~11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect~~ effect after expiration of the ~~Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent~~ Commitments and ~~the other Lenders shall continue to deal solely and directly with such Lender~~ repayment in full of all amounts payable under or in connection with ~~such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage~~ all of the ~~granting Lender’s Pro Rata Share of the Revolving Facility as it then exists~~ Financing Documents and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantysuch Indebtedness. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Ipalco Enterprises Inc)

Binding Effect; Assignment. ~~(a) This~~ The rights and obligations of this Agreement ~~and the other Loan Documents to which Borrower is a Party will be binding upon~~ shall bind and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ Parties and their respective successors and assigns. Except as expressly provided herein, ~~except that Borrower~~ the rights and obligations of this Agreement may not ~~assign its rights hereunder or thereunder or~~ be assigned by any ~~interest herein or therein~~ Party without the prior written consent of the other Parties. Within thirty (30) calendar days from the date hereof (the “Assignment Period”), Parent may assign any and all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning~~ of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights ~~as a Lender~~ under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of Parent, including (A) the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished Person identified to the ~~Administrative Agent as hereinbelow provided, (iii) except~~ Company by Parent in writing concurrently with the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes execution of this Agreement, ~~with the Commitments and/or Advances therein set forth and, to the extent~~ or (B) any private investment fund managed by a wholly-owned direct or indirect Subsidiary of Parent (such ~~Commitments and/or Advances~~assignee, the ~~assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees~~ “Proposed Assignee”), provided that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance all of the ~~Commitments and/or Advances retained by~~ following conditions are satisfied (the ~~assigning Lender.~~ “Permitted Assignment”): (a) the Company’s board of directors determines that, considering the anticipated change in the financial position of the merging companies upon effectiveness of the Permitted Assignment, no reasonable concern exists that the Surviving Corporation will be unable to fulfill the obligations of the Surviving Corporation to its creditors; (b) the proposed assignment would not reasonably be expected to materially delay or significantly increase the risk of not obtaining the expiration or termination of applicable waiting periods under the HSR Act (or any extensions thereof), significantly increase the risk of any Governmental Authority entering an order prohibiting the consummation of the Merger, or significantly increase the risk of not being able to remove any such order on appeal or otherwise; (c) ~~By executing and delivering~~ the Proposed Assignee is an ~~Assignment and Acceptance,~~ entity organized under the ~~Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner~~ Laws of any state of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan DocumentUnited States; (iid) the ~~assigning Lender has made no representation or warranty and assumes no responsibility with respect~~ Proposed Assignee consents in writing to ~~the financial condition~~ assume all obligations of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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 Parent under this Agreement; (ve) ~~it appoints~~ the Proposed Assignee affirms in writing that all representations and ~~authorizes the Administrative Agent to take such action and to exercise such powers under~~ warranties made in this Agreement with respect to Parent as ~~are delegated~~ of the date of this Agreement shall be deemed representations and warranties made with respect to the ~~Administrative Agent by~~ Proposed Assignee as of the date of such assignment (other than (i) Section 3.01, to the extent Proposed Assignee’s state of organization is different from that of Parent, and (ii) Section 4.07); (f) Merger Sub, which upon the Permitted Assignment becoming effective shall be a wholly owned direct or indirect Subsidiary of the Proposed Assignee, re-affirms in writing that all representations and warranties made in this Agreement with respect to Merger Sub as of the date of this Agreement shall be deemed representations and warranties made with respect to Merger Sub as of the date of such assignment; (g) no assignment shall relieve Parent of any of its obligations pursuant to this Agreement; and (vih) Parent delivers to the Company a written notice of consummation of the Permitted Assignment, together with the true, correct and complete assignment documents containing evidence that the conditions to the Permitted Assignment set forth in clauses (c), (d), (e), (f) and (g) of this Section 8.05 have been satisfied. Parent shall promptly notify the Company in writing in the event Parent has determined that it will ~~perform~~ not exercise its right to make a Permitted Assignment. Any purported assignment in ~~accordance with their terms all of the obligations which by the terms~~ violation of this Agreement ~~are required to be performed by it as a Lender~~is null and void ab initio. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Merger Agreement (Magicjack Vocaltec LTD)

Binding Effect; Assignment. (a) ~~This~~ The provisions of this Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties hereto and their respective successors and ~~assigns~~assigns permitted hereby, except that neither Borrower nor any other Party may ~~not~~ assign or otherwise transfer any of its rights or obligations hereunder ~~or thereunder or any interest herein or therein~~ without the prior written consent of ~~all~~ the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except for the following (any other attempted assignment or transfer by any party hereto shall be null and void): (i) to an Eligible Assignee in accordance with the provisions of clause (b) of this Section; (ii) by way of participation in accordance with the provisions of clause (d) of this Section; (iii) by way of pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section; or (iv) to an SPC in accordance with the provisions of clause (h) of this Section. 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 clause (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Lender and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. Each Lender represents that it is not acquiring its ~~Note~~ Notes with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of ~~such Note~~ its Notes must be within the control of such Lender). . (b) Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or ~~any~~ a portion of its rights and obligations under this Agreement (including all or a portion of its ~~Commitment~~Pro Rata Share of the Revolving Commitment (and, to the ~~Advances~~ extent it assigns its Class A Loans, a corresponding portion of its Class A Funding Requirement) and the Loans (including for purposes of this clause (b), participations in L/C Obligations) at the time owing to ~~it and the Note or Notes held by~~ it); provided ~~that,~~ that any such assignment shall be subject to ~~subsection (f) below,~~ the following conditions: (i) ~~such Eligible Assignee, if not then a Lender or~~ in the case of an ~~Affiliate~~ assignment of the entire remaining amount of the assigning Lender~~, shall be approved by~~ ’s Class A Funding Requirement and Class A Revolving Obligations or all of the ~~Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld~~ assigning Lender’s other Loans at the time owing to it or ~~delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except~~ in the case of an assignment to a Lender, an Affiliate of ~~the assigning Lender, to another~~ a Lender or an Approved Fund, no minimum amount need be assigned; (ii) in any case not described in subsection (b)(i) of this Section, the amount of the ~~entire remaining rights and obligations~~ Class A Funding Requirement (which for this purpose includes any Class A Loans outstanding thereunder) or other Loans or, if the Commitments are not then in effect, the principal outstanding balance of the Loans of the assigning Lender ~~under this Agreement~~subject to each such assignment, determined as of the ~~assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing~~ date the Assignment and Assumption with respect to such ~~assigning Lender that~~ assignment is ~~equivalent~~ delivered to ~~less than $3,000,000~~the Administrative Agent or, ~~and (iv) the effective date of any such assignment shall be as~~ if “Trade Date” is specified in the Assignment and ~~Acceptance~~Assumption, ~~but~~ as of the Trade Date, shall not ~~earlier than~~ be less than, with respect to (A) the ~~date which is five~~ Class A Funding Requirements or Class A Loans, $5,000,000 and (5B) ~~Banking Days after~~ the ~~date~~ other Loans, $1,000,000, unless each of the Administrative Agent and, so long as no Event of Default has ~~received~~ occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met; (iii) 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 (and, in the case of the Class A Loans, the allocable residual revolving portion of the Revolving Commitment represented by that Lender’s Class A Funding Requirement) assigned, except that this clause (iii) shall not (A) apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Commitments on a non-pro rata basis; (iv) the consent of the Administrative Agent, the Issuing Lender and any Swing Line Lender (such consent not to be unreasonably withheld) shall be required for assignments of any portion of the Revolving Commitment if such assignment is to a Person that is not a Revolving Lender with a Pro Rata Share of the Revolving Commitment, an Affiliate of such Revolving Lender or an Approved Fund with respect to such Revolving Lender; (v) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and ~~Acceptance~~Assumption, together with a processing and recordation fee of $3,500, provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment, and the Eligible Assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and (vi) Each assignment of Class A-1 Loans by a Class A-1 Lender must be accompanied by a proportionate assignment to, and assumption by the assignee Lender of, its Class A Funding Requirement, and each assignment of Class A-2 Loans and related Class A Revolving Obligations by a Class A-2 Lender must be accompanied by a proportionate assignment to, and assumption by the assignee Lender of, its Class A Funding Requirement, and the corresponding Class A Loans and Class A Revolving Obligations thereafter made by the assignee Lender shall be treated as under the same sub-Class (i.e., Class A-1 or Class A-2). ~~Upon~~ Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of this Section, from and after the effective date ~~of such~~ specified in each Assignment and ~~Acceptance~~Assumption, the Eligible Assignee ~~named therein~~ thereunder shall be a ~~Lender for all purposes of~~ party to this ~~Agreement, with the Commitments and/or Advances therein set forth~~ Agreement and, to the extent of the interest assigned by such ~~Commitments and/or Advances~~Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender ~~shall~~ thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its ~~further~~ obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.6,3.7 and 11.11 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, Borrower ~~agrees that it~~ and each Co-Borrower (at their sole expense) shall execute and deliver ~~(against delivery by~~ a Note under the ~~assigning Lender~~ relevant Commitment to ~~Borrower of such Lender’s Notes) to such~~ the assignee Lender~~, Notes evidencing~~ . Any assignment or transfer by a Lender of rights or obligations under this Agreement that ~~assignee Lender’s Commitments and/or Advances,~~ does not comply with this clause shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and ~~to the assigning Lender, Notes evidencing the remaining balance~~ obligations in accordance with clause (d) of ~~the Commitments and/or Advances retained by the assigning Lender~~this Section. (c) ~~By executing and delivering~~ The Administrative Agent, acting solely for this purpose as an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition agent of Borrower or and the ~~performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement~~Co-Borrowers, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and ~~Acceptance~~ Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”~~) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance~~). The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive, and ~~receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee~~Borrower, the ~~Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower~~Co-Borrowers, the Administrative Agent and the Lenders ~~shall deem and~~ may treat ~~the Persons listed as Lenders~~ each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the ~~holders~~ contrary. The Register shall be available for inspection by each of Borrower, each Co-Borrower and ~~owners~~ the Issuing Lender at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or substantive change to the Loan Documents is pending, any Lender wishing to consult with other Lenders in connection therewith may request and receive from the Administrative Agent a copy of the Register. (d) Any Lender may at any time, without the consent of, or notice to, Borrower, any Co-Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of that Lender’s rights and/or obligations under this Agreement (including all or a portion of any of its Pro Rata Shares of the ~~Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any~~ Commitments and/or the Loans (including that Lender’s ~~rights and obligations hereunder shall be effective,~~ participations in ~~each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as~~ L/C Obligations and/or Swing Line Loans) owing to it); provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) ~~such~~ that Lender’s obligations under this Agreement shall remain unchanged, (ii) ~~such~~ that Lender shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative ~~Agent~~ Agent, the Lenders and the ~~other Lenders~~ Issuing Lender shall continue to deal solely and directly with ~~such~~ that Lender in connection with ~~such~~ that 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, ~~(v) the participation interest shall be expressed as a percentage~~ modification or waiver of ~~the granting Lender’s Pro Rata Share~~ any provision of ~~the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (~~this Agreement; provided that such agreement or ~~the aggregate Commitments pertaining thereto)~~instrument may provide that such Lender will not, ~~or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi)~~ without the consent of the ~~holder~~ Participant, agree to any amendment, waiver or other modification described in Section 11.2 requiring the consent of that Lender and which also affects such ~~participation~~ Participant. Subject to clause (e) of this Section, Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.6 and 3.7 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section. (e) A Participant shall not be ~~required for amendments~~ entitled to receive any greater payment under Section 3.6 or ~~waivers of provisions~~ 3.7 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the ~~Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money~~ participation to such Participant is ~~due~~ made with Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the ~~Lenders~~benefits of Section 3.11(d) unless Borrower is notified of the participation sold to such Participant and such Participant agrees, ~~(B) reduce~~ for the ~~rate~~ benefit of ~~interest on the Notes~~Borrower, ~~any fee or any other monetary amount payable~~ to ~~the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty~~comply with Section 11.21 as though it were a Lender. (f) ~~Borrower agrees that upon the occurrence and during the continuance~~ Any Lender may at any time pledge or assign a security interest in all or any portion of ~~any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in~~ 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) The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the ~~Loan Documents~~keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to ~~any Person, in whole or~~ the extent and as provided for in any ~~part thereof~~applicable law, ~~notwithstanding any provisions contained herein (~~including ~~those set forth~~ the Federal Electronic Signatures in ~~subsection (b) above)~~ Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or in any other ~~Loan Document~~ similar state laws based on the Uniform Electronic Transactions Act. (h) Notwithstanding anything to the ~~contrary~~contrary contained herein, ~~except that, other than~~ any Lender (a “Granting Lender”) may grant to an SPC the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) ~~assignments~~ nothing herein shall constitute a commitment by ~~a Lender~~ any SPC to ~~an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above~~fund any Loan, ~~no assignment shall be made without the approval of the Administrative Agent.~~and

Appears in 1 contract

Sources: Loan Agreement (MGM Mirage)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which ~~Borrower is~~ the Loan Parties are a ~~Party~~ party are and will be binding upon and inure to the benefit of ~~Borrower~~the Loan Parties, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that ~~Borrower~~ the Loan Parties may not assign ~~its~~ their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders, and any purported assignment without such consent shall be null and void. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge or assign a security in all or any portion of its Note or any other instrument evidencing its rights as a Lender under this Agreement to secure obligations of such Lender, including without limitation (i) any pledge or assignment to secure obligations to a Federal Reserve Bank, ~~but~~ and (ii) any pledge or assignment to any holders of obligations owed, or security issued, by such Lender, including to any trustee for, or any other representative of such holders, provided that no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank or other pledgee or assignee the rights of a Lender hereunder absent foreclosure of such ~~pledge~~pledge or assignment and any such pledge shall be in conformance with the terms and conditions of the Co-Lender Agreement. (b) From time to time following the ~~Closing~~ Agreement Effective Date, each Lender may assign ~~to one or more Eligible Assignees~~ all or any portion of its ~~rights and obligations under this Agreement (including all or a portion of its~~ Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such ~~Eligible Assignee~~assignment is in conformance with the terms and conditions of the Co-Lender Agreement, (ii) such assignee, if not then a Lender or an Affiliate of ~~the assigning~~ a Lender or a Qualified Institutional Lender, shall ~~be approved~~ require approval by the Administrative Agent and ~~Borrower~~ (if no Event of Default then exists) Trust (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitments Assignment and Acceptance, a copy of ~~which~~ which, together with any Notes subject to such assignment, shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ share of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ the Commitment that is equivalent to less than $~~3,000,000~~5,000,000, (iv) the assignment shall be of a constant, and not a varying, percentage of the Assignor’s rights and obligations under this Agreement, and (ivv) the effective date of any such assignment shall be as specified in the Commitments Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitments Assignment and ~~Acceptance~~Acceptance unless otherwise agreed by the Administrative Agent. Upon the effective date of such Commitments Assignment and Acceptance, the ~~Eligible Assignee~~ assignee named therein shall be a Lender for all purposes of this Agreement, with ~~the Commitments and/or Advances~~ a Percentage and Commitment amount as therein (and herein, if such assignee was already a Lender) set forth and, to the extent of ~~such Commitments and/or Advances~~the portion of the Commitment assigned, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver ~~(against delivery by the assigning Lender to Borrower of such Lender’s Notes)~~ to such assignee ~~Lender,~~ Lender Notes evidencing that assignee Lender’s ~~Commitments and/or Advances~~Commitment, and to the assigning Lender, Notes evidencing the remaining balance of ~~the Commitments and/or Advances retained by the assigning~~ such Lender’s Commitment. (c) By executing and delivering an a Commitments Assignment and Acceptance, the ~~Eligible Assignee~~ assignee thereunder acknowledges and agrees that: (i) ~~other than~~ the ~~representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of~~ Administrative Agent has not made any ~~adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the ~~assigning Lender~~ Administrative Agent has not made no any representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ the Loan Parties or the performance by ~~Borrower~~ the Loan Parties of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section ~~7.1~~ 15.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitments Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Commitments Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the ~~Pro Rata Share of the Commitments~~ Percentage, applicable Tranche and Commitment amount held by each Lender, giving effect to each Commitments Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitments Assignment and Acceptance executed by any Lender and an ~~Eligible Assignee~~assignee and the Notes subject to such assignment, and receipt of an assignment fee of $3,500 from such Lender or ~~Eligible Assignee~~assignee (which fee shall be imposed only once with respect to simultaneous transfers on a single day to different Affiliates of such Lender), the Administrative Agent shall, promptly following the effective date thereof, upon the request of any party, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the ~~Pro Rata Shares of the Revolving Facility~~ Commitments listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Commitment shall be effective, in each case unless and until an a Commitments Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable ~~Pro Rata Share of the Revolving Facility~~ Commitment shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of ~~the corresponding Pro Rata Share of the Revolving Facility~~such Commitment. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (including another Lender but excluding an Employee Plan) in ~~or to all or~~ a portion of its ~~rights and/or obligations under this~~ Commitment in accordance with the terms and conditions of the Co-Lender Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.7, ~~3.6~~3.8, ~~11.11~~ and ~~11.21~~ 18.11 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred ~~in respect of the Lender granting such participation~~ absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s ~~Pro Rata Share of the Revolving Facility~~ Commitment as it then exists and shall not ~~restrict an increase in the Revolving Facility (~~afford such participant any rights or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of privileges under the Loan Documents ~~other than those which~~ except as provided in clause (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (biii) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Secured Acquisition and Construction Loan Agreement (BioMed Realty Trust Inc)

Binding Effect; Assignment. ~~(a)~~ 11.10.1 This ~~Agreement~~ Agreement, the Notes and the other Loan Documents ~~to which Borrower is a Party will~~ shall be binding upon and shall inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties hereto and thereto and their respective successors and assigns, except that neither Borrower nor Guarantor may ~~not~~ assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of ~~all the Lenders~~each Lender. Each Lender ~~represents~~ shall (i) have the right in accordance with this Section 11.10 to sell and assign to any Eligible Assignee all or any portion of its interest (provided that ~~it is~~ any such partial assignment shall not ~~acquiring~~ be for a principal amount of less than Five Million Dollars ($5,000,000)) under this Agreement, its respective Note ~~with a view~~ and the other Loan Documents (as separately described and defined in those agreements), subject to the ~~distribution thereof within~~ prior written consent of Borrower, which consent shall not be unreasonably withheld, and (ii) to grant any participation or other interest herein or therein, except that each potential participant to which a Lender intends to grant any rights under Sections 2.9, 2.10, 5.1 or 10.2 shall be subject to the ~~meaning~~ prior written consent of Borrower, which consent shall not be unreasonably withheld; provided, however, that no such sale, assignment or participation grant shall result in requiring registration under the Securities Act of 1933, as ~~amended (subject to~~ amended, or qualification under any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgestate securities law. ~~(b) From time~~ 11.10.2 Subject to ~~time following~~ the ~~Closing Date~~limitations of this Section 11.10.2, each Lender may ~~assign~~ sell and assign, from time to ~~one or more Eligible Assignees~~ time, all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments ~~held~~ to any of its Affiliates or, with the approval of Borrower (which approval shall not be unreasonably withheld), to any other financial institution acceptable to Agent, subject to the assumption by such assignee of the share of the Commitments so assigned. The assignment to such Affiliate or other financial institution shall be evidenced by an instrument of Assignment and Assumption in the form of Exhibit G (the "Assignment and Acceptance") executed by the assignor Lender (hereinafter from time to time referred to as the "Assignor Lender") and such Affiliate or other financial institution (which, upon such assignment shall become a Lender hereunder (hereinafter from time to time referred to as the "Assignee Lender")). The Assignment and Assumption need not include any of the economic or financial terms upon which such Assignee Lender receives the assignment from the Assignor Lender, and such terms need not be disclosed to or approved by Borrower; provided only that such terms do not diminish the obligations undertaken by such Assignee Lender in the Assignment and Assumption or increase the obligations of Borrower under this Agreement. Upon execution of an Assignment and Assumption, (i) the definition of "Commitments" in Section 1 hereof and the Pro Rata Shares set forth therein shall be deemed to be amended to reflect each Lender's share of the Commitments, giving effect to ~~each~~ the assignment and (ii) the Assignee Lender shall, from the effective date of the Assignment and ~~Acceptance~~Assumption, be subject to all of the obligations, and entitled to all of the rights, of a Lender hereunder, except as may be expressly provided to the contrary in the Assignment and Assumption. ~~The Register~~ To the extent the obligations hereunder of the Assignor Lender are assumed by the Assignee Lender, the Assignor Lender shall be ~~available during normal business hours for inspection by Borrower or~~ relieved of such obligations. Upon the assignment of any ~~Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed~~ interest by any Assignor Lender pursuant to this Section 11.10.2, such Assignor Lender agrees to supplement Schedule 1.1 to show the date of such assignment, the Assignor Lender, the Assignee Lender, the Assignee Lender's address for notice purposes and ~~an Eligible Assignee~~the amount of the Commitments so assigned. In connection and as a condition to each assignment hereunder, ~~and receipt of an assignment~~ the Assignor Lender agrees to pay or to cause the Assignee Lender to pay to Agent a processing fee of $~~3,500 from such~~ 3,500; provided that no processing fee shall be charged for any assignment to a Lender or ~~Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders~~ a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect Lender Affiliate. 11.10.3 Subject to the ~~applicable Pro Rata Share~~ limitations of ~~the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof~~this Section 11.10.3, ~~and~~ any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may also grant, from time to ~~time grant participations to one or more banks or other financial institutions~~ time, participation interests in ~~or to all or a portion~~ the interests of ~~its rights and/or obligations~~ such Lender under this Agreement~~; provided~~, ~~however~~its Note and the other Loan Documents to any other financial institution without notice to, or approval of, Borrower. The grant of such a participation interest shall be on such terms as the granting Lender determines are appropriate, provided only that (i) the holder of such ~~Lender’s obligations~~ participation interest shall not have any of the rights of a Lender under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so expressly provides, ~~for the purposes of~~ rights under Sections ~~3.5~~2.9, ~~3.6~~2.10, ~~11.11~~ 5.1 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation10.2, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (viii) the consent of the holder of such a participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other ~~than~~ than, if the participation agreement expressly provides, those which (A) ~~extend~~ increase the monetary amount of any ~~Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders~~Commitment, (B) ~~reduce the rate of interest on the Notes,~~ decrease any fee or any other monetary amount payable to ~~the~~ Lenders, or (C) ~~reduce~~ extend the date upon which any monetary amount ~~of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty~~is payable to Lenders. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Warehousing Credit Agreement (PLM International Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which ~~Borrower is~~ the Loan Parties are a ~~Party~~ party are and will be binding upon and inure to the benefit of ~~Borrower~~the Loan Parties, the Administrative Agent, each of the ~~Lenders~~Banks, and their respective successors and assigns, except that ~~Borrower~~ the Loan Parties may not assign ~~its~~ their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the ~~Lenders~~Banks, and any purported assignment without such consent shall be null and void. Each ~~Lender~~ Bank represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such ~~Lender~~Bank). Any ~~Lender~~ Bank may at any time pledge its ~~Note~~ Notes or any other instrument evidencing its rights as a ~~Lender~~ Bank under this Agreement to a Federal Reserve Bank, but no such pledge shall release that ~~Lender~~ Bank from its obligations hereunder or grant to such Federal Reserve Bank the rights of a ~~Lender~~ Bank hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each ~~Lender~~ Bank may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion of its~~ Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a ~~Lender~~ Bank or an Affiliate of the assigning ~~Lender~~Bank, shall ~~be approved~~ require approval by the Administrative Agent and ~~Borrower~~ (if no Event of Default then exists) Parent (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of ~~which~~ which, together with any Notes subject to such assignment, shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning ~~Lender~~Bank, to another ~~Lender~~ Bank or of the entire remaining ~~rights and obligations~~ Commitments of the assigning ~~Lender under this Agreement~~Bank, the assignment shall not assign a ~~portion~~ share of ~~such assigning Lender’s~~ the Commitments ~~and/or Advances owing to such assigning Lender~~ that is equivalent to less than $~~3,000,000~~10,000,000, (iv) the assignment shall be of a constant, and not a varying, percentage of the Assignor’s rights and obligations under this Agreement, and (ivv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and ~~Acceptance~~Acceptance unless otherwise agreed by the Administrative Agent. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a ~~Lender~~ Bank for all purposes of this Agreement, with ~~the Commitments and/or Advances~~ a Percentage and Commitment as therein (and herein, if such Eligible Assignee was already a Bank) set forth and, to the extent of ~~such~~ the portion of the Commitments ~~and/or Advances~~assigned, the assigning ~~Lender~~ Bank shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver ~~(against delivery by the assigning Lender to Borrower of such Lender’s Notes)~~ to such assignee ~~Lender~~Bank, Notes evidencing that assignee ~~Lender~~Bank’s ~~Commitments and/or Advances~~Commitment, and to the assigning ~~Lender~~Bank, Notes evidencing the remaining balance of ~~the Commitments and/or Advances retained by the assigning Lender~~such Bank’s Commitment. (c) By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) ~~other than~~ the ~~representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of~~ Administrative Agent has not made any ~~adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the ~~assigning Lender~~ Administrative Agent has not made no any representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ the Loan Parties or the performance by ~~Borrower~~ the Loan Parties of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any ~~Lender~~ Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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~~Bank. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the ~~Lenders~~ Banks and the ~~Pro Rata Share of the Commitments~~ Percentage and Commitment amounts held by each ~~Lender~~Bank, giving effect to each Commitment Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any ~~Lender~~ Bank upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any ~~Lender~~ Bank and an Eligible ~~Assignee~~Assignee and the Notes subject to such assignment, and receipt of an assignment fee of $3,500 from such ~~Lender~~ Bank or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, upon the request of any party, provide to Borrower and the ~~Lenders~~ Banks a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the ~~Lenders~~ Banks shall deem and treat the Persons listed as ~~Lenders~~ Banks in the Register as the holders and owners of the ~~Pro Rata Shares of the Revolving Facility~~ Commitments listed therein for all purposes hereof, and no assignment or transfer of any ~~Lender’s rights and obligations hereunder~~ such Commitment shall be effective, in each case unless and until an a Commitment Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable ~~Pro Rata Share of the Revolving Facility~~ Commitments shall be owed to the ~~Lender~~ Bank listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a ~~Lender~~ Bank shall be conclusive and binding on any subsequent holder, assignee or transferee of ~~the corresponding Pro Rata Share of the Revolving Facility~~such Commitments. (e) Each ~~Lender~~ Bank may from time to time grant participations to one or more banks or other financial institutions (including another Bank but excluding an Employee Plan) in ~~or to all or~~ a portion of its ~~rights and/or obligations under this Agreement~~Commitments; provided, however, that (i) such ~~Lender~~Bank’s obligations under this Agreement shall remain unchanged, (ii) such ~~Lender~~ Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a ~~Lender~~ Bank hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.7, ~~3.6~~3.8, 11.11 and ~~11.21~~ 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred ~~in respect of the Lender granting such participation~~ absent the participation, (iv) Borrower, the Administrative Agent and the other ~~Lenders~~ Banks shall continue to deal solely and directly with such ~~Lender~~ Bank in connection with such ~~Lender~~Bank’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting ~~Lender~~Bank’s ~~Pro Rata Share of the Revolving Facility~~ Commitment as it they then ~~exists~~ exist and shall not ~~restrict an increase in the Revolving Facility (~~afford such participant any rights or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of privileges under the Loan Documents ~~other than those which~~ except as provided in clause (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (biii) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Unsecured Credit Agreement (BioMed Realty Trust Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which ~~Borrower is~~ Borrowers are a Party will be binding upon and inure to the benefit of ~~Borrower~~Borrowers, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that ~~Borrower~~ Borrowers may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its~~ the Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and ~~Borrower~~ (if no Event of Default then exists) Borrowers (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ the Commitment that is equivalent to less than $~~3,000,000,~~ 5,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share of the Commitment therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. ~~Borrower~~ Borrowers agrees that it shall execute and deliver (against delivery by the assigning Lender to ~~Borrower~~ Borrowers of ~~such Lender’s~~ its Notes) to such assignee Lender, Notes evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Share of the Commitment, and to the assigning Lender, Notes evidencing the remaining balance ~~of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Loan Agreement (Safeskin Corp)

Binding Effect; Assignment. ~~(a)~~ This ~~Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and~~ Warrant shall inure to the benefit of ~~Borrower,~~ and be binding upon the ~~Administrative Agent, each of~~ Company and the ~~Lenders,~~ Holder and their respective ~~successors~~ successors, heirs, legal representatives and permitted assigns. This Warrant and the Warrant Shares (collectively, ~~except that Borrower~~ "Securities") may only be disposed of pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from or in a transaction not ~~assign its rights hereunder or thereunder or~~ subject to the registration requirements of the Securities Act, and in compliance with any ~~interest herein or therein without~~ applicable federal and state securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement, transfer may only be made with the prior written consent of ~~all~~ the ~~Lenders. Each Lender represents that it is~~ Company, which shall not ~~acquiring its Note with a view~~ be unreasonably withheld, and the Company may require the transferor to provide to the ~~distribution thereof within~~ Company an opinion of counsel selected by the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitmenttransferor, the ~~Advances owing to it~~ form and ~~the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate~~ substance of ~~the assigning Lender,~~ which opinion shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished reasonably satisfactory to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth andCompany, to the ~~extent~~ effect that such transfer does not require registration of such ~~Commitments and/or Advances,~~ transferred securities under the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this AgreementSecurities Act; provided, however, that ~~(i) such Lender’s obligations under this Agreement~~ notwithstanding the foregoing, no consent of the Company shall ~~remain unchanged, (ii) such Lender shall remain solely responsible~~ be required for the assignment or transfer of rights hereunder by a Holder to the ~~other parties hereto for the performance~~ spouse, ancestors, lineal descendants or siblings of such ~~obligations~~assignor or transferor, provided the transferee(s) certify to the Company that each is an "accredited investor" within the meaning of Rule 501(a) under the Securities Act and that it is acquiring the Securities solely for investment purposes. The Company shall register the transfer of any portion of this Warrant, upon surrender of this Warrant with the Form of Assignment attached hereto duly completed and signed, to the Company's transfer agent or to the Company at the office specified in Section 8.2. Upon any such transfer, a new warrant to purchase Common Stock, in substantially the form of this Warrant (~~iii)~~ any such new warrant, a "New Warrant"), evidencing the ~~participating banks or other financial institutions~~ portion of this Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining portion of this Warrant not ~~be a Lender hereunder for any purpose except~~so transferred, if ~~the participation agreement so provides~~any, ~~for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only~~ shall be issued to the ~~extent that~~ transferring Holder. The acceptance of a New Warrant by the ~~cost~~ transferee shall be deemed the acceptance by such transferee of ~~such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect~~ all of the Lender granting such participation absent the participation, (iv) 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~~of a holder of a Warrant. This Warrant is exchangeable, ~~(v)~~ upon the ~~participation interest shall be expressed as a percentage~~ surrender hereof by the Holder to the office of the ~~granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase~~ Company specified in Section 8.2, for one or more New Warrants evidencing in the ~~Revolving Facility (or~~ aggregate the ~~aggregate Commitments pertaining thereto), or in~~ right to purchase the ~~granting Lender’s rights and obligations~~ number of Warrant Shares which may then be purchased hereunder~~, so long as~~ . Any such New Warrant will be dated the ~~amount of the participation interest is not affected thereby and (vi) the consent of the holder~~ date of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyexchange. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Warrant Agreement (Microfield Group Inc)

Binding Effect; Assignment. (aA) This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of the Borrower, the ~~Administrative~~ Collateral Agent, the Paying Agent and the Administrative Agent and each ~~of the Lenders~~Lender, and their respective successors and assigns, except that the Borrower ~~may~~ shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of ~~all~~ the Administrative Agent and the Lenders, and any assignment by the Borrower in violation of this Section 10.8 shall be null and void. ~~Each Lender represents that it is not acquiring its Note with a view~~ Notwithstanding anything to the ~~distribution thereof within the meaning of the Securities Act of 1933~~contrary in this Section 10.8, ~~as amended (subject to~~ any ~~requirement that disposition of such Note must be within the control of such Lender). Any~~ Lender may at any ~~time pledge its Note~~ time, without the consent of the Borrower or the Administrative Agent, assign all or any ~~other instrument evidencing~~ portion of its rights as and obligations under this Agreement and any Loan Note to a Federal Reserve Bank and each Conduit Lender may assign its rights and obligations under this Agreement to a ~~Federal Reserve Bank~~Program Support Provider; provided, ~~but~~ that no such assignment or pledge shall release ~~that~~ the transferor Lender from its obligations ~~hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each~~ hereunder. Each Lender may assign to one or more Eligible Assignees all or any part or portion of, or may grant participations to one or more banks or other entities in all or any part or portion of its rights and obligations ~~under this Agreement~~ hereunder (including ~~all or a portion of~~ its Commitment, ~~the Advances owing to it and the Note~~ its Loan Notes or ~~Notes held by it~~its Advances); ~~provided that~~provided, ~~subject~~ that each such assignment (A) shall be made pursuant to ~~subsection~~ an Assignment and Assumption, (fB) ~~below,~~ shall be made either (i) to a Permitted Assignee or (ii) to any other Person that is acceptable to the Administrative Agent in its reasonable discretion (such ~~Eligible Assignee~~consent not to be unreasonably withheld, conditioned or delayed) unless an Event of Default or Early Amortization Event shall have occurred and be continuing, and (C) shall require the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed) if ~~not then~~ made during the Availability Period (it being understood that the Borrower shall be deemed to have acted reasonably in withholding, conditioning or delaying any proposed assignment to a Competitor during the Availability Period) unless such assignment is to a Lender or an Affiliate of a Lender or an Event of Default or Early Amortization Event shall have occurred and be continuing; provided, that the ~~assigning Lender,~~ Borrower shall be ~~approved~~ 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. The parties to each assignment shall execute and ~~Borrower~~ deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. (~~neither~~ B) In connection with any assignment of ~~which approvals shall be unreasonably withheld or delayed)~~rights and obligations of any Defaulting Lender hereunder, ~~(ii)~~ no such assignment shall be ~~evidenced by an Assignment~~ effective unless and ~~Acceptance~~until, ~~a copy of which~~ in addition to the other conditions thereto set forth herein, the parties to the assignment shall ~~be furnished~~ make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as ~~hereinbelow provided~~appropriate (which may be outright payment, ~~(iii) except in~~ purchases by the ~~case~~ assignee of ~~an assignment to an Affiliate~~ participations or subparticipations, or other compensating actions, including funding, with the consent of the ~~assigning~~ Borrower and the Administrative Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to ~~another~~ each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, or of any Lender hereunder (and interest (C) Upon, and to the ~~entire remaining rights and obligations of the assigning~~ extent of, any assignment (unless otherwise stated therein) made by any Lender ~~under this Agreement~~hereunder, the ~~assignment shall not assign a portion~~ assignee or purchaser of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any~~ such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender hereunder for all purposes of this ~~Agreement~~Agreement and shall have all the rights, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights benefits and obligations ~~hereunder being assigned thereby free and clear of any adverse claim,~~ (including the ~~assigning Lender has made no representation or warranty and assumes no responsibility with respect~~ obligation to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered provide documentation pursuant to Section ~~7.1 and such other documents and information~~ 2.17(G)) of a Lender hereunder. Each Funding Agent, acting solely for this purpose as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all an agent of the ~~obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent~~ Borrower, shall maintain at ~~the Administrative Agent’s Office a copy~~ one of ~~each Assignment and Acceptance delivered to it and~~ its offices a register (the “Register”) for the recordation of the names and ~~address of each~~ addresses of the Lenders in its Lender Group, the outstanding principal amounts (and ~~the Pro Rata Share~~ accrued interest) of the ~~Commitments held by each Lender, giving effect~~ Advances owing to each ~~Assignment~~ Lender in its Lender Group pursuant to the terms hereof from time to time and ~~Acceptance~~any assignment of such outstanding Advances. The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive absent manifest error, and ~~receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee,~~ the ~~Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto.~~ Borrower, the Administrative Agent and the Lenders shall ~~deem and~~ treat ~~the Persons listed as Lenders~~ each Person whose name is recorded in the Register pursuant to the terms hereof as ~~the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein~~ a Lender hereunder for all purposes ~~hereof, and no assignment or transfer~~ of ~~any Lender’s rights and obligations hereunder~~ this Agreement. The Register shall be ~~effective~~available for inspection by the Borrower, ~~in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by~~ the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any ~~request, authority or consent of any Person who~~Lender, at ~~the~~ any reasonable time ~~of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive~~ and ~~binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may~~ from time to time ~~grant participations to one or more banks or other financial institutions~~ upon reasonable prior notice. (D) Any Lender may, without the consent of the Borrower, sell participation interests in ~~or to all or~~ its Advances and obligations hereunder (each such recipient of a ~~portion of its rights and/or obligations under this Agreement~~participation a “Participant”); provided, ~~however~~so long as no Event of Default has occurred and is continuing, the Borrower's consent shall be required for a Lender to sell participation interests in its Advances and obligations hereunder to a Competitor; provided, further, that ~~(i)~~ after giving effect to the sale of such ~~Lender~~participation, such ▇▇▇▇▇▇’s obligations ~~under this Agreement~~ hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, ~~(ii)~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ~~(iii) the participating banks or other financial institutions shall not be a~~ all amounts payable to such Lender hereunder ~~for~~ and all rights to consent to any ~~purpose except,~~ waiver hereunder or amendment hereof shall be determined as if ~~the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of~~ such ~~benefits to Borrower does~~ Lender had not ~~exceed the cost which Borrower would have incurred in respect of the Lender granting~~ sold such participation ~~absent~~ interest, and the ~~participation, (iv) Borrower,~~ Borrower and the Administrative Agent and the other ~~Lenders~~ parties hereto shall continue to deal solely and directly with such Lender and not be obligated to deal with such Participant. 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 outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction 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 Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. 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, none of the Administrative Agent, the Collateral Agent or the Paying (E) Notwithstanding any other provision of this Agreement to the contrary, (i) a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to a security trustee in connection with the funding by such ~~Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage~~ Lender of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) Advances without the consent of the ~~holder of~~ Borrower; provided that no such ~~participation interest~~ pledge or grant shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release ~~any Guarantor~~ such Lender from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights obligations under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) ~~pledges described in~~ a Conduit Lender may at any time, without any requirement to obtain the ~~last sentence of subsection (a) above, no assignment shall be made without the approval~~ consent of the Administrative ~~Agent.~~Agent or the Borrower, pledge or grant a security interest in all or any portion of its rights (including rights to payment of capital and yield) under this Agreement to a collateral agent or trustee for its commercial paper program. Section

Appears in 1 contract

Sources: Credit Agreement (Sunrun Inc.)

Binding Effect; Assignment. ~~(a) This~~ All terms of this Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of ~~Borrower,~~ and be enforceable by the ~~Administrative Agent, each of the Lenders, and their~~ respective successors and ~~assigns, except that Borrower may not~~ assigns of the parties hereto. Neither party shall have the right to assign ~~its rights hereunder or thereunder~~ this Agreement or any ~~interest herein~~ right, obligation or ~~therein~~ privilege hereunder without first obtaining the ~~prior written~~ consent of ~~all~~ the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)party hereto; provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) ~~other than~~ Pittsfield shall have the ~~representation and warranty~~ right to assign its right to receive the Termination Payments, provided that any such assignee shall confirm in writing that it is taking such assignment subject to the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency terms of this ~~Agreement or any other Loan Document~~Agreement; (ii) Pittsfield shall have the ~~assigning Lender has made no representation or warranty and assumes no responsibility with respect~~ right to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under assign this Agreement ~~as are delegated~~ at any time after the deadline for Commonwealth to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or claim any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof PPA Refunds shall have ~~been accepted~~ expired and either: (a) Commonwealth shall not have claimed any PPA Refunds, (b) Pittsfield shall have paid all PPA Refunds claimed by ~~the Administrative Agent and recorded in the Register as provided above. Prior~~ Commonwealth or determined to ~~such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall~~ be owed to ~~the Lender listed~~ Commonwealth; or (c) Pittsfield shall have posted an irrevocable letter of credit in ~~the Register as the owner thereof~~favor of Commonwealth, and ~~any request~~in form and substance reasonably acceptable to Commonwealth, ~~authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed~~ in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any ~~installment of principal due under~~ PPA Refunds claimed by Commonwealth; and (iii) Commonwealth shall have the ~~Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled~~ right to assign ~~its rights hereunder and under the Loan Documents, or grant participation interests in its rights under~~ this Agreement ~~and the Loan Documents,~~ to ~~any Person, in whole~~ a wholly-owned subsidiary of NSTAR that is a regulated utility with a credit rating on its senior unsecured non-credit enhanced long-term debt of “A” or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments better as determined by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentStandard & Poor’s.

Appears in 1 contract

Sources: Termination Agreement (Nstar/Ma)

Binding Effect; Assignment. (aA) This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of the Borrower, the ~~Administrative~~ Paying Agent, the Verification Agent, the Facility Administrator and the Administrative Agent and each ~~of the Lenders~~Lender, and their respective successors and assigns, except that the Borrower ~~may~~ shall not have the right assign to its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of ~~all~~ the Administrative Agent and the Lenders~~. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning~~ , and any assignment by Borrower in violation of ~~the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must~~ this Section 10.8 shall be ~~within the control of such Lender)~~null and void. Any Lender may at any ~~time pledge its Note~~ time, without the consent of the Borrower or ~~any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank~~the Administrative Agent, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign ~~to one or more Eligible Assignees~~ all or any portion of its rights and obligations under this Agreement ~~(including~~ any Loan Note to a Federal Reserve Bank and each Conduit Lender may assign its rights and obligations under this Agreement to a Program Support Provider; provided, that no such assignment or pledge shall release the transferor Lender from its obligations hereunder. Each Lender may assign to one or more banks or other entities all or a any part or portion of, or may grant participations to one or more banks or other entities in all or any part or portion of its rights and obligations hereunder (including, without limitation, its Commitment, ~~the Advances owing to it and the Note~~ its Loan Notes or ~~Notes held by it~~its Advances); provided ~~that~~that during the Availability Period (or, ~~subject~~ with respect to ~~subsection~~ the Class B Lenders, prior to the Class B Availability Termination Date), no Lender may transfer or assign any portion of its rights and obligations under this Agreement or any Loan Note to a Disqualified Lender; provided further that each such assignment (fA) ~~below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender,~~ shall be ~~approved by~~ substantially in the form of Exhibit F hereto or any other form reasonably acceptable to the Administrative Agent and ~~Borrower~~ (~~neither of which approvals~~ B) shall either be made (i) to a Permitted Assignee or (ii) to a Person that is acceptable to the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld or delayed) unless an Event of Default or Amortization Event shall have occurred and be continuing. (B) If any assignment or participation is made to a Disqualified Lender in violation of this Section 10.8, the Borrower may upon notice to the applicable Disqualified Lender and the Administrative Agent, (A) purchase or prepay the Advances held by such Disqualified Lender by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified ▇▇▇▇▇▇ paid to acquire such Advances, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (B) require such Disqualified Lender to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 10.8), all of its interest, rights and obligations under this Agreement to one or more banks or other entities at the lesser of (iix) the principal amount thereof and (y) the amount that such ~~assignment shall be evidenced~~ Disqualified Lender paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder. (A) will not, absent an Event of Default or consent from the Borrower (x) have the right to receive financial reports that are not publicly available, Facility Administrator Reports or other reports or confidential information provided to Lenders by ~~an Assignment and Acceptance, a copy of which shall be furnished to~~ the Borrower or the Administrative Agent ~~as hereinbelow provided,~~ (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility Tax reporting information with respect to the ~~financial condition of~~ Advances), (y) attend or participate in meetings with the Borrower attended by the Lenders and the Administrative Agent, or (z) access any electronic site maintained by the Borrower or ~~the performance by Borrower~~ Administrative Agent to provide Lenders with confidential information or confidential communications from counsel to or financial advisors of the ~~Obligations;~~ Administrative Agent and (~~iii~~B) ~~it has received a copy~~ (x) for purposes of ~~this Agreement~~any consent to any amendment, ~~together with copies~~ waiver or modification of, or any action under, and for the purpose of ~~the most recent financial statements delivered pursuant~~ any direction to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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~~ undertake any action (or refrain from taking ~~or not taking action under this Agreement; (v~~any action) ~~it appoints and authorizes the Administrative Agent to take such action and to exercise such powers~~ under this Agreement or any other Transaction Document, each Disqualified Lender will be deemed to have consented in the same proportion as the Lenders that are ~~delegated~~ not Disqualified Lenders consented to ~~the Administrative Agent by this Agreement;~~ such matter, and (viy) it for purposes of voting on any plan of reorganization or plan of liquidation, each Disqualified Lender party hereto hereby agrees (1) not to vote on such plan, (2) if such Disqualified Lender does vote on such plan notwithstanding the restriction in the foregoing clause (1), such vote will ~~perform~~ be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other debtor relief laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such plan in accordance with ~~their terms all~~ Section 1126(c) of the ~~obligations which~~ Bankruptcy Code (or any similar provision in any other debtor relief laws) and (3) not to contest any request by any party for a determination by a bankruptcy court (or other applicable court of competent jurisdiction) effectuating the ~~terms~~ foregoing clause (2). (C) Upon, and to the extent of, any assignment (unless otherwise stated therein) made by any Lender hereunder, the assignee or purchaser of such assignment shall be a Lender hereunder for all purposes of this Agreement ~~are required~~ and shall have all the rights, benefits and obligations (including the obligation to ~~be performed by it~~ provide documentation pursuant to Section 2.17(G)) of a Lender hereunder. Each Funding Agent, acting solely for this purpose as ~~a Lender. (d) The Administrative Agent~~ an agent of the Borrower, shall maintain at ~~the Administrative Agent’s Office a copy~~ one of ~~each Assignment and Acceptance delivered to it and~~ its offices a register (the “Register”) for the recordation of the names and ~~address of each~~ addresses of the Lenders in its Lender Group, the outstanding principal amounts (and ~~the Pro Rata Share~~ accrued interest) of the ~~Commitments held by each Lender, giving effect~~ Advances owing to each ~~Assignment~~ Lender in its Lender Group pursuant to the terms hereof from time to time and ~~Acceptance~~any assignment of such outstanding Advances. The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive absent manifest error, and ~~receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee,~~ the ~~Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto.~~ Borrower, the Administrative Agent and the Lenders shall ~~deem and~~ treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each ~~case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and~~ Person whose name is recorded in the Register ~~as provided above. Prior to such recordation, all amounts owed with respect~~ pursuant to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be ~~conclusive~~ available for inspection by the Borrower, the Paying Agent and ~~binding on~~ any ~~subsequent holder~~Lender, ~~assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may~~ at any reasonable time and from time to time ~~grant participations~~ upon reasonable prior notice. (D) Any Lender may, without the consent of the Borrower, sell participation interests in its Advances and obligations hereunder (each such recipient of a participation a “Participant”); provided that after giving effect to ~~one or more banks or other financial institutions in or to all or a portion~~ the sale of ~~its rights and/or obligations under this Agreement; provided~~such participation, ~~however, that (i)~~ such ~~Lender~~▇▇▇▇▇▇’s obligations ~~under this Agreement~~ hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, ~~(ii)~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ~~(iii) the participating banks or other financial institutions shall not be a~~ all amounts payable to such Lender hereunder ~~for~~ and all rights to consent to any ~~purpose except,~~ waiver hereunder or amendment hereof shall be determined as if ~~the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of~~ such ~~benefits to Borrower does~~ ▇▇▇▇▇▇ had not ~~exceed the cost which Borrower would have incurred in respect of the Lender granting~~ sold such participation ~~absent~~ interest, and the ~~participation, (iv) Borrower,~~ Borrower and the Administrative Agent and the other ~~Lenders~~ parties hereto shall continue to deal solely and directly with such Lender and not be obligated to deal with such participant. The Participant shall have no right to affect such ▇▇▇▇▇▇’s vote or action with respect to any matter requiring such ▇▇▇▇▇▇’s vote or action under this Agreement. 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 outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction 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 Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. 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 shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.17(G)), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.17 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. (E) Notwithstanding any other provision of this Agreement to the contrary, (i) a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to a security trustee in connection with the funding by such ~~Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage~~ Lender of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) Advances without the consent of the ~~holder of~~ Borrower; provided that no such ~~participation interest~~ pledge or grant shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release ~~any Guarantor~~ such Lender from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights obligations under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) ~~pledges described~~ a Conduit Lender may at any time, without any requirement to obtain the consent of the Administrative Agent or the Borrower, pledge or grant a security interest in ~~the last sentence~~ all or any portion of ~~subsection~~ its rights (aincluding, without limitation, rights to payment of capital and yield) ~~above~~under this Agreement to a collateral agent or trustee for its commercial paper program. (F) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be ~~made without~~ effective unless and until, in addition to the ~~approval~~ other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Advances in accordance with its Lender Group Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this clause (F), then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Appears in 1 contract

Sources: Credit Agreement (Sunnova Energy International Inc.)

Binding Effect; Assignment. (a) This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding ~~upon~~ upon, and inure to the benefit of of, the Borrower, the ~~Administrative Agent, each of~~ Agent and the ~~Lenders,~~ Lenders and their respective successors and ~~assigns~~assigns upon the execution by the Borrower, ~~except~~ the Agent, the Required Lenders (as defined in the Existing Credit Agreement), the Majority Revolving Lenders (as defined in the Existing Credit Agreement), the Majority Term Lenders (as defined in the Existing Credit Agreement), the Majority Additional Term Lenders (as defined in the Existing Credit Agreement), the Majority Supplemental Revolving Lenders (as defined in the Existing Credit Agreement), the Majority D Tranche Term Lenders and each E Tranche Lender; provided, however, that the Borrower may not assign its rights or obligations hereunder or ~~thereunder~~ in connection herewith or any interest herein (voluntarily, by operation of law or ~~therein~~ otherwise) without the prior written consent of ~~all~~ the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) ~~From time to time following the Closing Date, each~~ Any Lender may ~~assign~~ make, carry or transfer Loans at, to ~~one~~ or ~~more Eligible Assignees all or~~ for the account of, any ~~portion~~ of its ~~rights and obligations under this Agreement (including all~~ branch offices or ~~a portion~~ the office of ~~its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or~~ an Affiliate of ~~the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii)~~ such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may ~~from~~ at any time ~~to time grant participations~~ sell to one or more banks or other ~~financial institutions~~ entities ("Participants") participating interests in ~~or to~~ all or a any portion of its ~~rights and/or~~ Commitment and related outstanding obligations ~~under this Agreement~~of such Lender hereunder (in respect of any Lender, its "Credit Exposure"); provided, however, that ~~(i)~~ in the case of a Revolving Lender, it sells it Credit Exposure ratably between its Revolving Loan Commitment and its participation interest in the F▇▇▇▇▇▇▇ Letters of Credit. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s '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~~thereof, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the ~~other Lenders~~ Borrower and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (. The Borrower agrees that if amounts outstanding under this Agreement or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions any of the Loan Documents ~~other than those which (A) extend any Amortization Date, any applicable Maturity Date~~ are due or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notesunpaid, or ~~(D) release any Guarantor from its Guaranty. (f) Borrower agrees that~~ shall have been declared or shall have become due and payable upon the occurrence ~~and during the continuance~~ of ~~any~~ an Event of Default, each ~~Lender~~ Participant shall be ~~entitled~~ deemed to ~~assign~~ have the right of setoff in respect of its ~~rights hereunder and under the Loan Documents, or grant participation interests~~ participating interest in ~~its rights~~ amounts owing under this Agreement and the Loan ~~Documents,~~ Documents to ~~any Person, in whole~~ the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or ~~in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in~~ any other Loan ~~Document~~ Document, provided that such right of set-off shall be subject to the ~~contrary, except that, other than (i) assignments by a Lender to an Affiliate~~ obligation of such ~~Lender or~~ Participant to ~~another Lender or (ii) pledges described~~ share with the Lenders, and the Lenders agree to share with such Participant, as provided in ~~the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~Section 9.

Appears in 1 contract

Sources: Credit Agreement (Stone Container Corp)

Binding Effect; Assignment. ~~(a)~~ This Agreement ~~and the other Loan Documents to which Borrower is a Party will~~ shall be binding upon and inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders~~parties hereto, and their respective successors and assigns, except that ~~Borrower may~~ the Issuer shall not have the right to assign its rights hereunder or ~~thereunder or~~ any interest herein ~~or therein~~ without the prior written consent of ~~all~~ the ~~Lenders~~Administrative Agent and the Purchasers, and any assignment by the Issuer in violation of this Section 6.7 shall be null and void. ~~Each Lender represents that it is not acquiring its Note with a view~~ Notwithstanding anything to the ~~distribution thereof within~~ contrary in the ~~meaning~~ first sentence of ~~the Securities Act of 1933~~this Section 6.7, ~~as amended (subject to~~ any ~~requirement that disposition of such Note must be within the control of such Lender). Any Lender~~ Purchaser may at any ~~time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank~~time, ~~but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank~~ without the ~~rights~~ consent of ~~a Lender hereunder absent foreclosure of such pledge. (b) From time to time following~~ the ~~Closing Date~~Administrative Agent, ~~each Lender may~~ assign ~~to one or more Eligible Assignees~~ all or any portion of its rights ~~and obligations~~ under this Agreement ~~(including~~ and any Note to a Federal Reserve Bank; provided, however, that no such assignment or pledge shall release the transferor Purchaser from its obligations hereunder. Each Purchaser may assign to one or more banks or other entities all or a any part or portion ~~of its Commitment~~of, ~~the Advances owing to it and the Note~~ or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may ~~from time to time~~ grant participations to one or more banks or other ~~financial institutions~~ entities in ~~or to~~ all or a any part or portion of its rights ~~and/or~~ and obligations ~~under this Agreement~~hereunder (including, without limitation, its Commitment, its Notes or its Increases); provided, however, that each such assignment (ia) shall be in form and substance acceptable to the Administrative Agent, (b) shall, unless such ~~Lender~~assignee is a branch or wholly owned subsidiary of Credit Suisse AG or a commercial paper conduit as to which Credit Suisse AG, or a branch or wholly owned subsidiary thereof, provides a full liquidity and/or credit facility, be approved by the prior written consent of the Issuer (such consent not to be unreasonably withheld or delayed), and (c) shall be to a bank or other financial institution which is acceptable to the Administrative Agent in its sole discretion. Any Purchaser may, without the consent of the Issuer, sell participation interests in its Increases and obligations hereunder; provided, however, that after giving effect to the sale of such participation, such Purchaser’s obligations ~~under this Agreement~~ hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, ~~(ii)~~ such ~~Lender~~ Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations, ~~(iii) the participating banks~~ all amounts payable to such Purchaser hereunder and all rights to consent to any waiver hereunder or ~~other financial institutions~~ amendment hereof shall be determined as if such Purchaser had not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting sold such participation ~~absent~~ interest, and the ~~participation, (iv) Borrower,~~ Issuer and the Administrative Agent ~~and the other Lenders~~ shall continue to deal solely and directly with such ~~Lender~~ Purchaser and not be obligated to deal with such participant. Upon, and to the extent of, any assignment (unless otherwise stated therein) made by any Purchaser hereunder, the assignee or purchaser of such assignment shall be a Purchaser hereunder for all purposes of this Agreement. Without limiting the foregoing, each assignee and each purchaser of an assignment or participation shall, to the fullest extent permitted by law, have the same rights and benefits hereunder with respect to the rights and benefits so assigned or participated as it would have if it were a Purchaser hereunder. [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. Notwithstanding any other provision of this Agreement to the contrary, a Purchaser may pledge as collateral, or grant a security interest in, all or any portion of its rights to receive payments in, to and under this Agreement to a security trustee in connection with the funding by such ~~Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage~~ Purchaser of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) Increases without the consent of the ~~holder of~~ Issuer; provided, that no such ~~participation interest~~ pledge or grant shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release ~~any Guarantor~~ such Purchaser from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights obligations under this Agreement ~~and the Loan Documents, to any Person, in whole~~ or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of substitute such security trustee for such Lender ~~or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~as a party hereto.

Appears in 1 contract

Sources: Note Purchase Agreement (Solarcity Corp)

Binding Effect; Assignment. ~~(a)~~ This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not ~~assign its rights hereunder~~ be assigned by Licensee by operation of Law or ~~thereunder or any interest herein or therein~~ otherwise without the ~~prior~~ express written consent of ~~all~~ the ~~Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933~~Licensor (which consent may be granted or withheld in Licensor’s sole discretion), as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereofmay be, and any ~~request, authority or~~ attempted assignment without such consent ~~of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender~~ shall be ~~conclusive~~ null and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreementvoid; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest Licensee shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled permitted to assign its rights hereunder with notice to (but without the consent of) Licensor to (i) any Affiliate that is substantially owned, directly or indirectly, by the same Person as Licensee and ~~under the Loan Documents~~that expressly assumes Licensee’s obligations hereunder in writing, or ~~grant participation interests~~ (ii) a purchaser in ~~its~~ connection with a sale by Licensee of (A) all or substantially all of the ▇▇▇▇▇▇ Business or the Facilities at which the Licensed Software is used pursuant to the license granted in ARTICLE 3, or (B) any Facility or Facilities at which the Licensed Software is used pursuant to the license granted in ARTICLE 3, where the Facility or Facilities to be sold represent a complete business unit or a business representing no less than [****]% of Licensee’s assets as of the Effective Date, in which case Licensee may only assign such rights ~~under~~ and obligations pursuant to this Agreement as may be related to such Facility or Facilities; provided, further, that in case of any assignment pursuant to the foregoing subsections (ii)(A) or (B), that such purchaser (a) is not a Direct Competitor of TDCC, (b) meets Licensor’s reasonable standards of creditworthiness, and ~~the Loan Documents~~(c) expressly assumes Licensee’s obligations hereunder in writing; and provided, ~~to any Person~~further, that no such assignment shall relieve Licensee of its obligations hereunder. This Agreement may be assigned by Licensor, in whole or in part, to any ~~part~~ Person without the consent of Licensee, including in connection with a sale by Licensor of all or substantially all of the Licensed Software or assets necessary to provide the Services, or a portion thereof, ~~notwithstanding any provisions contained herein (including those set forth~~ in ~~subsection (b) above)~~ which case the Licensor may assign such rights and obligations pursuant to this Agreement as may be connected with such portion of the Licensed Software or ~~in any other Loan Document to~~ Services. Upon the ~~contrary~~assignment of this Agreement and the express assumption by the assignee of the assigned obligations of Licensor under this Agreement through the execution of a written assignment and assumption agreement, ~~except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment~~ Licensor shall be ~~made without the approval of the Administrative Agent~~fully and unconditionally released from all obligations and liabilities under this Agreement.

Appears in 1 contract

Sources: Computerized Process Control Software Agreement (Styron Canada ULC)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents ~~to which Borrower is a Party will~~ shall be binding upon and shall inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties hereto and thereto and their respective successors and assigns, except that the Borrower and its Affiliates may not assign ~~its~~ their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Any assignment by the Borrower or its Affiliates without the prior written consent of the Lenders shall be void, provided that no Person other than the Lenders shall have any rights under this sentence. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such ~~Note~~ Notes must be within the control of such Lender). Any Lender may at any time pledge its ~~Note~~ Note, if any, or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement~~ Pro Rata Shares of the Commitments (~~including all~~ or either of them, without the requirement that such assignment be a ~~portion~~ ratable share of ~~its Commitment,~~ each of the ~~Advances owing to it and the Note or Notes held by it~~Commitments); provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by each of the Administrative Agent and the Borrower (neither of which approvals shall be unreasonably withheld or delayed)) PROVIDED that the consent of the Borrower shall not be required if any Event of Default exists, (ii) such assignment shall be evidenced by an Assignment ~~and Acceptance~~Agreement, a copy of which shall be furnished to the Administrative ~~Agent as hereinbelow provided~~Agent, (iii) except in the case of an assignment to an Affiliate of the assigning ~~Lender,~~ Lender or to another Lender or of the entire remaining ~~rights and obligations~~ Commitments of the assigning ~~Lender under this Agreement~~Lender, the assignment shall be of a Pro Rata Share of either Commitment of not ~~assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to~~ less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment ~~and Acceptance~~Agreement, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date the Administrative Agent has received the Assignment ~~and Acceptance~~Agreement unless the Administrative Agent otherwise agrees. Upon the effective date of such Assignment ~~and Acceptance~~Agreement, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Shares of the Commitments ~~and/or Advances therein~~ set forth therein and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Shares, the assigning Lender shall be released from its further obligations under this Agreement. The Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to the Borrower of ~~such Lender’s~~ its applicable Notes) to such assignee Lender, Notes evidencing that assignee Lender~~’s Commitments and/or Advances~~'s Pro Rata Shares of the Commitments, and to the assigning Lender, Notes evidencing the remaining balance Pro Rata Shares of the Commitments ~~and/or Advances~~ retained by the assigning ~~Lender~~Lender (in each case, if Notes are requested by such assignee under Section 2.1). (c) By executing and delivering an Assignment ~~and Acceptance~~Agreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the ~~rights and obligations hereunder~~ Pro Rata Shares of the Commitments being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance by the Borrower of the Revolving Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section ~~7.1~~ 9.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment ~~and Acceptance~~Agreement; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Assignment ~~and Acceptance~~ Agreement delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agentit. After receipt of a completed Assignment ~~and Acceptance~~ Agreement executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such ~~Lender or~~ Eligible Assignee, ~~the~~ Administrative Agent shall, promptly following the effective date thereof, provide notice thereof to the Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityLenders. (e) Each Lender may grant participations from time to time ~~grant participations~~ in a portion of its Pro Rata Shares of the Commitments (or either of them, without the requirement that such participation be in a ratable share of each of the Commitments) to one or more banks or other financial institutions ~~in or to all or a portion of its rights and/or obligations under this Agreement~~(including another Lender); provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections ~~3.5~~3.7, ~~3.6~~3.8, ~~11.11~~ 13.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation13.15, (iv) ~~Borrower,~~ the ~~Administrative Agent~~ Borrower and the other ~~Lenders~~ Creditors shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share of the ~~Revolving Facility~~ relevant Commitment as it then exists and shall not restrict an increase in the ~~Revolving Facility (or the aggregate Commitments pertaining thereto)~~Commitments, or in the granting Lender~~’s rights and obligations hereunder~~'s Pro Rata Share, so long as the amount of the participation interest is not affected ~~thereby~~ thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents ~~other than~~ OTHER THAN those which (A) extend ~~any Amortization~~ the Maturity Date, ~~any applicable Maturity Date~~ or any ~~other~~ date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the ~~Notes~~Loans, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due ~~under~~ with respect to the ~~Notes~~Loans, or (D) release any ~~Guarantor from its Guaranty~~material Collateral, in each case to the extent that the same directly affect the participant. (f) ~~Borrower agrees that upon~~ Any Lender (a "Granting Lender") may grant to one or more special purpose funding vehicles (each, an "SPC") of such Granting Lender, identified as such in writing from time to time by the ~~occurrence~~ Granting Lender to the Administrative Agent and ~~during~~ the ~~continuance~~ Borrower, the option to provide all or any part of any ~~Event~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to Article 2, provided that (i) nothing herein shall constitute a commitment to make any Advance by any SPC, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of ~~Default~~such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof, and (iii) the rights of any such SPC shall be derivative of the rights of the Granting Lender. Each SPC shall be conclusively presumed to have made arrangements with its Granting Lender for the exercise of voting and other rights hereunder in a manner which is acceptable to the SPC, and the Administrative Agent, the other Creditors and each ~~Lender~~ other Party shall be entitled to ~~assign~~ rely upon and deal solely with the Granting Lender with respect to Advances made by or through its ~~rights~~ SPC. The making of an Advance by an SPC hereunder shall utilize the Pro Rata Share of the Commitments of the Granting Lender to the same extent, and ~~under~~ as if, such Advance were made by the ~~Loan Documents,~~ Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or ~~grant participation interests in its rights~~ similar payment obligation under this Agreement (all liability for which shall remain with the related 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 ~~Loan Documents~~payment in full of all outstanding senior indebtedness of any SPC, to it will not institute against, or join any ~~Person~~other person in instituting against, ~~in whole~~ such SPC any bankruptcy, reorganization, arrangement, insolvency or in liquidation proceedings or similar proceedings under the laws of the United States or any ~~part~~ State thereof, PROVIDED THAT the Granting Lender for each SPC hereby agrees to indemnify, save, and hold harmless each other party hereto for any loss, cost, damage and expense arising out of their inability to institute any such proceeding against its SPC. In addition, notwithstanding ~~any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document~~ anything to the ~~contrary~~contrary contained in this Section, ~~except that, other than~~ any SPC may (i) ~~assignments by~~ 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 ~~Lender~~ portion of its interests in any Advance to ~~an Affiliate of such~~ its Granting Lender or to ~~another~~ any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Advances made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans (but nothing contained herein shall be construed in derogation of the obligation of the Granting Lender to make Advances hereunder), PROVIDED THAT neither the consent of the SPC or of any such assignee shall be required for amendments or waivers of provisions of the Loan Documents except for those amendments or waivers for which the consent of participants is required under Section 13.8(e)(vi), and (ii) ~~pledges described in the last sentence~~ disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of ~~subsection (a) above~~a surety, ~~no assignment shall be made without the approval of the Administrative Agent~~guarantee or credit or liquidity enhancement to such SPC.

Appears in 1 contract

Sources: Loan Agreement (Mississippi Band of Choctaw Indians Dba Choctaw RSRT DVLP E)

Binding Effect; Assignment. ~~(a)~~ 12.8.1 This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the Administrative Agent~~Agents, each of ~~the~~ Credit Facility Lenders, and their respective permitted successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the~~ Lenders. Each Credit Facility Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Credit Facility Lender may at any time pledge its Note or any other instrument evidencing its rights as a ~~Lender~~ lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that ~~Lender~~ lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Credit Facility Lender hereunder absent foreclosure of such pledge. ~~(b)~~ 12.8.2 From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Pro Rata Share of ~~its~~ the Revolving Commitment~~, the Advances owing to it and the Note or Notes held by it)~~; provided ~~that, subject to subsection (f) below,~~ that (i) such Eligible Assignee, if not then a Lender or an Affiliate or Approved Fund of the assigning Lender, shall be approved by ~~the~~ Administrative Agent ~~and Borrower (neither~~ and, provided no Default or Event of Default then exists, Borrower, which ~~approvals~~ approval(s) shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed), ; (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to ~~the~~ Administrative Agent as hereinbelow provided, ; (iii) except in the case of an assignment (a) to an Affiliate of the assigning ~~Lender,~~ Lender or to another Lender or (b) of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the assignment shall not assign a ~~portion~~ Pro Rata Share of ~~such assigning Lender’s Commitments and/or Advances owing to such assigning Lender~~ the Revolving Commitment that is equivalent to less than $~~3,000,000, and~~ 5,000,000.00; (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) ~~Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Commitment Assignment and Acceptance; and (v) the consent of Issuing Lender and Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required if such -117- ▇▇▇▇▇▇ Lease Finance Corporation Fourth Amended and Restated Credit Agreement assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the ~~Commitments and/or Advances~~ Pro Rata Share of the Revolving Commitment therein set forth and, to the extent of such ~~Commitments and/or Advances~~Pro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. ~~Borrower~~ ▇▇▇▇▇▇▇▇ agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of ~~such Lender’s Notes~~its Note(s)) to such assignee Lender, ~~Notes~~ Note(s) evidencing that assignee ~~Lender~~▇▇▇▇▇▇’s ~~Commitments and/or Advances~~Pro Rata Share of the Revolving Commitment, and to the assigning Lender, ~~Notes~~ Note(s) evidencing the ~~remaining balance of the Commitments and/or Advances~~ Pro Rata Share retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Willis Lease Finance Corp)

Binding Effect; Assignment. ~~(a)~~ 11.10.1 This ~~Agreement~~ Agreement, the Note and the other Loan Documents ~~to which Borrower is a Party will~~ shall be binding upon and shall inure to the benefit of ~~Borrower,~~ the ~~Administrative Agent, each of the Lenders,~~ parties hereto and thereto and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of ~~all the Lenders~~each Lender. Each Lender ~~represents that it is not acquiring~~ shall (i) have the right in accordance with this Section 11.10 to sell and assign to any Eligible Assignee all or any portion of its interest under this Agreement, the Note ~~with a view~~ and the other Loan Agreements subject to the ~~distribution thereof within~~ prior written consent of Borrower, which consent shall not be unreasonably withheld, and (ii) to grant any participation or other interest herein or therein, except that each potential participant to which a Lender intends to grant any rights under Sections 2.9, 2.10, 5.1 or 10.2 shall be subject to the ~~meaning~~ prior written consent of Borrower, which consent shall not be unreasonably withheld; provided, however, that no such sale, assignment or participation grant shall result in requiring registration under the Securities Act of 1933, as ~~amended (subject to~~ amended, or qualification under any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgestate securities law. ~~(b) From time~~ 11.10.2 Subject to ~~time following~~ the ~~Closing Date~~limitations of this Section 11.10.2, each Lender may ~~assign~~ sell and assign, from time to ~~one or more Eligible Assignees~~ time, all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments ~~held by each Lender, giving effect~~ to ~~each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or~~ any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its ~~rights and/or obligations under this Agreement; provided~~Affiliates or, ~~however, that~~ with the approval of Borrower (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions which approval shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining theretounreasonably withheld), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any ~~Person~~other financial institution acceptable to Agent, ~~in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document~~ subject to the ~~contrary, except that, other than (i) assignments~~ assumption by ~~a Lender to an Affiliate of~~ such ~~Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval~~ assignee of the ~~Administrative Agent.~~share of the Commitments so assigned. The assignment to such Affiliate

Appears in 1 contract

Sources: Warehousing Credit Agreement (PLM International Inc)

Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a ~~Party~~ party will be binding upon and inure to the benefit of Borrower, ~~the~~ Administrative Agent, ~~each of the Lenders,~~ Lenders and their respective successors and assigns, except ~~that~~ that, Borrower may ~~not~~ not, except as permitted by Section 7.03, assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to~~ Lenders and any ~~requirement that disposition of~~ such ~~Note must~~ attempted assignment shall be ~~within the control of such Lender)~~void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve ~~Bank~~Bank or, if such Lender is a fund, to any trustee or to any other representative of holders of obligations owed or securities issued by such fund as security for such obligations or securities, but no such pledge shall release ~~that~~ such Lender from its obligations hereunder or grant to such Federal Reserve Bank or trust or other representative the rights of a Lender hereunder absent foreclosure of such pledge, and any transfer to any Person upon the enforcement of such pledge shall be subject to this Section 10.04. (b) From time to ~~time following the Closing Date~~time, each Lender may assign to one or more ~~Eligible Assignees~~ banks or other financial institutions (with any such bank or other financial institution, other than an Affiliate of the assigning Lender, being required to have a combined capital and surplus of at least $250,000,000 (such qualifications being subject to waiver by Borrower and Administrative Agent)) all or any portion of its ~~rights and obligations under this Agreement (including all or a portion~~ Commitment and/or Extensions of ~~its Commitment, the Advances owing to it and the Note or Notes held by it)~~Credit; provided ~~that, subject to subsection (f) below,~~ that (i) such ~~Eligible Assignee~~assignment, if not ~~then~~ to a Lender or an Affiliate of the assigning Lender, shall be ~~approved by the Administrative Agent and Borrower~~ consented to (~~neither of~~ which ~~approvals~~ consents shall not be unreasonably ~~withheld or delayed)~~withheld) by Borrower at all times other than during the existence of an Event of Default and by Administrative Agent, Swing Line Lender and each Issuing Lender, (ii) ~~such assignment shall be evidenced by an Assignment and Acceptance,~~ a copy of ~~which~~ a duly signed and completed Assignment and Acceptance shall be ~~furnished~~ delivered to ~~the~~ Administrative ~~Agent as hereinbelow provided~~Agent, (iii) except in the case of an assignment (A) to an Affiliate of the assigning ~~Lender,~~ Lender or to another Lender or (B) of the entire remaining ~~rights and obligations~~ Commitment of the assigning ~~Lender under this Agreement~~Lender, the ~~assignment~~ portion of the Commitment assigned shall not ~~assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to~~ be less than ~~$3,000,000~~the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five ~~(5) Banking~~ Business Days after the date ~~the~~ Administrative Agent has received the Assignment and Acceptance. Upon obtaining any consent required as set forth in the ~~effective date~~ prior sentence, any forms required by Section 10.20 and payment of ~~such Assignment and Acceptance~~the requisite fee described below, the ~~Eligible Assignee~~ assignee named therein shall be a Lender for all purposes of this ~~Agreement, with the Commitments and/or Advances therein set forth and,~~ Agreement to the extent of the Assigned Interest (as defined in such ~~Commitments and/or Advances~~Assignment and Acceptance), and, except for rights and obligations which by their terms survive termination of any Commitments, the assigning Lender shall be released from ~~its~~ any further obligations under this ~~Agreement~~Agreement to the extent of such Assigned Interest. Upon request, Borrower ~~agrees that it~~ shall execute and deliver ~~(against delivery by~~ new or replacement Notes to the assigning Lender and the assignee Lender to ~~Borrower of such Lender’s Notes)~~ evidence Loans made by them. Administrative Agent's consent to ~~such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances,~~ any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. Administrative Agent shall record the information contained in the Assignment and to Acceptance in the ~~assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender~~Register. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative 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; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and ~~Acceptance executed by any Lender and an Eligible Assignee~~Acceptance, and receipt of an assignment fee of $3,500 from such assignee and/or such assigning Lender ~~or Eligible Assignee~~(including in the case of assignments to Affiliates of assigning Lenders), ~~the~~ Administrative Agent shall, promptly ~~following~~ accept such Assignment and Acceptance and record information contained therein in the Register on the effective date ~~thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect~~ thereof determined pursuant thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (ed) Each Lender may from time to ~~time~~ time, without the consent of any other Person, grant participations to one or more ~~banks or~~ other ~~financial institutions~~ Persons (including another Lender) in ~~or to~~ all or a any portion of its ~~rights~~ Pro Rata Share of its Commitment and/or ~~obligations under this Agreement~~Extensions of Credit; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating ~~banks~~ bank or other financial ~~institutions~~ institution shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ~~Sections 3.5, 3.6, 11.11 and 11.21~~ the increased cost provisions of Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of ~~the~~ such Lender ~~granting such participation~~ absent the participation) and for purposes of Section 10.06, (iv) Borrower, ~~the~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, and (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan ~~Documents other than those~~ Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent (as between the assigning Lender and such participant) to any matter which (A) ~~extend any Amortization Date, any applicable~~ extends the Maturity Date as to such participant or any other date upon which any payment of money is due to ~~the Lenders~~such participant, (B) ~~reduce~~ reduces the rate of interest ~~on the Notes,~~ owing to such participant or any fee or any other monetary amount ~~payable~~ owing to ~~the Lenders~~such participant, or (C) ~~reduce~~ reduces the amount of any ~~installment~~ scheduled payment of principal ~~due under~~ owing to such participant. Any Lender that sells a participation to any Person that is a "foreign corporation, partnership or trust" within the ~~Notes,~~ meaning of the Code shall include in its participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.20 as if such Person were a Lender and provide that Administrative Agent and Borrower shall be third party beneficiaries of such covenant. Each Lender that sells or grants a participation shall (Da) ~~release any Guarantor~~ withhold or deduct from ~~its Guaranty. (f) Borrower agrees that upon~~ each payment to the ~~occurrence and during~~ holder of such participation the ~~continuance~~ amount of any ~~Event of Default~~tax required under applicable law to be withheld or deducted from such payment and not withheld or deducted therefrom by Borrower or Administrative Agent, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) ~~above)~~ pay the tax so withheld or ~~in any other Loan Document~~ deducted by it to the ~~contrary~~appropriate taxing authority in accordance with applicable law and (c) indemnify Borrower and Administrative Agent for any losses, ~~except that, other than (i) assignments by~~ cost and expenses that they may incur as a ~~Lender~~ result of any failure to ~~an Affiliate of~~ so withhold or deduct and pay such ~~Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent~~tax.

Appears in 1 contract

Sources: Five Year Revolving Credit Agreement (Comcast Cable Communications Inc)

Common use of Binding Effect; Assignment Clause in Contracts