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 1933Borrower, 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 LendersLender, 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 1933this 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 DateAcknowledgment 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 itits Advances); provided that, subject that (A) each party to subsection (f) belowsuch 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 Assigneeconsent 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 Lenderextent 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 AgreementAgreement 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 Acceptanceany 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 holderLender, 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; providedsuch 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. (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 unchangedassignor'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 obligationsassignor 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 exceptso transferred, if the participation agreement so providesany, 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 Agreementof 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. (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 LendersLender, 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 1933this 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 pledgehereunder.
(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 itthis 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 Acceptancea 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 providedextent that rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement, have the rights and obligations of a Lender hereunder (iiiincluding 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 $3,000,000matter, 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 Notescompetent 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 Lenderforegoing clause (2).
(cE) By executing and delivering an Assignment and AcceptanceAgreement, the Eligible Assignee Lender assignor thereunder acknowledges and agrees thatthe 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 claimas 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 DocumentTransaction 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 Obligationsany 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 AcceptanceAgreement; (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 Agreementthe 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 Acceptancethis 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 Assigneeassignee, and receipt of an assignment fee of $3,500 from together with any Loan Note subject to such Lender or Eligible Assigneeassignment, 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 thereofof 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, howeverthat 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 AgentAgent 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) 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 Lenderseach 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 Datelimitations 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 CommitmentAffiliates 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 thatany 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 3.52.9, 3.62.10, 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 LendersCommitment, (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 Guarantymonetary 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 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 Commitmentand 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 unchangedbe 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 3 contracts
Sources: Master Margin Loan Agreement (Western Asset Emerging Markets Debt Fund Inc.), 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 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 BankGood 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 Dateamounts, 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 Lenderfor 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 AssigneeExecutive’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 Assigneeother 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 will shall be binding upon the Seller and inure to the benefit of Borrower, the Administrative Agent, each of the LendersPurchasers, 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 Bankthe 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 $3,000,000Warrants, 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 be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the LendersCreditors, 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 BankBank 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 pledgepledge 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 LenderLender 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 delayedand 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 AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow providedAgent, (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 AgreementLender, 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 $3,000,0001,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAgreement. Upon the effective date of such Assignment and AcceptanceAgreement, 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 AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this AgreementAgreement 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 Notesits 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 AcceptanceAgreement, 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 AgreementAgreement 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 AcceptanceAgreement; (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. Borrowereffectiveness 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 3.53.7, 3.63.8, 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 Lendersthat 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 Lendersthat Lender, or (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantythat 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 thatthe 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) abovea surety, no assignment shall be made without the approval of the Administrative Agentguarantee 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 Borrowerand 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 BankAgreement. 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 Commitmentsecurity 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 Lenderall, 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 claimCredit, 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 timerelease 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 Lenderother 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 Assigneesuch 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 shall inure to the benefit of Borrower, the Administrative Agent, and be binding upon each of the Lenders, party and their respective its successors and permitted assigns. Except as otherwise provided in Subsections 9.3(a) and (b), except that Borrower may not neither party shall, directly or indirectly, assign this Agreement or any of its rights or obligations hereunder or thereunder or any interest herein or therein without the prior written consent of the other party. Without limiting the generality of the foregoing, a merger, acquisition or change of control of a party hereto shall be deemed to be an assignment. As used in this Section 9.3, change of control shall mean a transaction pursuant to which a person or group acting in concert, other than the currently controlling person or group, immediately after such transaction shall effectively control election of directors, but shall not include changes in the identity of owners of a party’s publicly held stock not involving any stock owner achieving ownership of more than [***] of a party’s publicly held stock entitled to vote for the election of directors.
(a) Notwithstanding the foregoing, MERCK may, without consent, assign this Agreement and its rights and obligations hereunder to an Affiliate or in connection with the transfer or sale of all the Lenders. Each Lender represents that it is not acquiring or substantially all of its Note with a view assets related to the distribution thereof within Licensed Product or the meaning business, or in the event of the Securities Act its merger or consolidation or change of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)or similar transaction. Any Lender may at any time pledge such assignee shall assume all obligations of its Note or any other instrument evidencing its rights as a Lender assignor 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 pledgeAgreement.
(b) From time to time following Notwithstanding the Closing Dateforegoing, each Lender ARRIS may assign this Agreement without consent in connection with a merger of, acquisition of, or sale of [***] indicates material that has been omitted pursuant to one or more Eligible Assignees a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. all or any portion of its rights and obligations under this Agreement (including substantially 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 Lenderassets of ARRIS, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed)PROVIDED, (ii) HOWEVER, that such assignment shall be evidenced by an Assignment [***] of the obligations of ARRIS hereunder, and Acceptancefurther that if such merger, a copy acquisition or sale of which assets [***], where ARRIS is not the surviving entity, then such assignment shall be furnished subject to Section 9.4 below. In 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 event of any such assignment by ARRIS hereunder, the licenses granted MERCK hereunder shall be as specified in not cover any intellectual property of such assignee not previously Controlled by ARRIS existing prior to 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.
(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: Research Collaboration and License Agreement (Celera CORP), Research Collaboration and License Agreement (Celera CORP)
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 LendersCreditors, 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 AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow providedprovided 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 AgreementLender, 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 $3,000,0001,500,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, 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 AcceptanceAgreement, 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 AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreementthe Loan Documents. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notesits 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 AcceptanceAgreement, 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 AcceptanceAgreement; (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 AgreementPro Rata Share; providedPROVIDED, howeverHOWEVER, 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, (iiiiv) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose exceptEXCEPT, 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 Notesparticipation, any fee or any other monetary amount payable to the Lendersparticipant, (C) reduce the amount of any installment of principal due under the NotesNotes in a manner which affects the participant, or (D) release any Guarantor from its Guarantymaterial 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 thatthe 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 Agentidentity 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 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 BankBank 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 Datedate 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 thatmore 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 Acceptancethe 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 AcceptanceAssumption, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAssumption. 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 Acceptancerequisite 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 AdvancesAssignment 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 AgreementAgreement 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 Lenderevidence 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 LenderRegister.
(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 AssigneeAssumption, 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 Agreementthe 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 Lenderssuch 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 Lenderssuch 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 Defaultany 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 DocumentsDocuments (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
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 AgreementLender, 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 AdvancesPro 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 Notesits 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, (iiiiv) 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 AgreementLender, 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 $3,000,0005,000,000 (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 AdvancesPro 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 AdvancesLoans, 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 FacilityCommitments 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 AgreementLoans; 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 3.53.6, 3.63.7, 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 hereunderCommitments 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 NotesLoan, 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 NotesLoan, (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 Guarantyother 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 Documentspurpose 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) aboveprovided 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) abovethe 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 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 thatthe 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 claimAcceptance, 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 Documentinstrument 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 Obligationsany 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 Agreementthe 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 LenderBank.
(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 Assigneeall 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 abovea 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 Defaultcontrary, 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 DocumentsBoard 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 AgentGovernmental 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 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 Lendersother 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 CommitmentPurchaser 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 BorrowerCo-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 BankBank 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 Datedate 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 Assigneeassignment, 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 providedAgent, (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 $3,000,000the 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 Acceptancethe 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 AdvancesAssignment 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 AgreementAgreement 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 Lenderevidence 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 LenderRegister.
(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 AssigneeAcceptance, 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 Agreementthe 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 Lenderssuch 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 Lenderssuch 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 Defaulttax 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 contraryappropriate 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 Agenttax.
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 the Loan Parties are a Party party are and will be binding upon and inure to the benefit of Borrowerthe 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 AgreementLender, 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 $3,000,00010,000,000, (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 AcceptanceAcceptance 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 Advancesassigned, 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 AdvancesCommitment, 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 AgreementAgreement 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 AssigneeAssignee 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 Facilitysuch 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 AgreementCommitments; 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 3.53.7, 3.63.8, 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) 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 Lenderseach 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 Datelimitations 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 CommitmentAffiliates 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 thatany 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 3.52.9, 3.62.10, 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 LendersCommitment, (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 Guarantymonetary 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 be binding upon and shall inure to the benefit of Borrower, and be binding upon the Administrative Agent, each of the Lenders, parties hereto and their respective successors legal representatives and assignssuccessors. Notwithstanding the foregoing, except that Borrower may this Agreement shall not assign its rights hereunder be assigned by Purchaser by operation of Law or thereunder or any interest herein or therein otherwise without the prior express written consent of Seller, which shall not be unreasonably withheld. For purposes of this clause, the term ‘assignment’ shall include a change in control of Purchaser, and the term ‘change in control’ shall mean any of the following, whether in a single transaction or a series of related transactions: (a) a sale, conveyance, transfer, distribution, lease, assignment, license, or other disposition of all or substantially all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning assets 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.
Purchaser; (b) From time to time following the Closing Dateany consolidation or merger of Purchaser or its controlling affiliates, each Lender may assign to any dissolution of Purchaser or its controlling affiliates, or any reorganization of one or more Eligible Assignees all of Purchaser or its controlling affiliates; or (c) any portion sale, transfer, issuance, or disposition of issued or outstanding equity ownership of Purchaser that results in a change of majority ownership of Purchaser or a change in majority voting rights of the equity ownership of Purchaser. In the event of a change in control of Purchaser, Seller shall have a right to buy back the business acquired pursuant to this Agreement at a fair market value based on the market conditions at the time, negotiated in good faith by the Parties (the “Buyback Option”), if Seller advises Purchaser in writing, within sixty (60) days of the written notice to Seller of the Purchaser change of control, of its rights and obligations under intent to exercise its Buyback Option, with failure to timely exercise its Buyback Option being deemed to be rejection thereof. Any rejection of the Buyback Option by Seller shall be deemed to constitute consent by Seller to the assignment of this Agreement (including all or a portion in connection with such change of control. The Parties acknowledge that in connection with the expected spinoff by Seller of its Commitment, Aerospace business (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“Spin Transaction”), (ii) such assignment shall be evidenced by an Assignment Seller will assign 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 novate 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 $3,000,000Transition Services Agreement, and any related agreements to Honeywell Aerospace US LLC, a Delaware limited liability company (iv) the effective date “Honeywell Aerospace”), or an affiliate or subsidiary 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 hereofHoneywell Aerospace, and no assignment consent by or transfer of any Lender’s rights and obligations hereunder further notice to Purchaser 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 required in connection with therewith. P▇▇▇▇▇▇▇▇ agrees to execute such Lender’s rights documentation as may be reasonably requested by Seller to evidence such assignment 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 Guarantynovation.
(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 and License Agreement (Innovative Solutions & Support Inc), Asset Purchase and License Agreement (Innovative Solutions & Support 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, 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, (iiiiv) 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 AgreementLender, 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 $3,000,0005,000,000 (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 AdvancesPro 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 AdvancesLoans, 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 FacilityCommitments 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 AgreementLoans; 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 3.53.6, 3.63.7, 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 hereunderCommitments 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 NotesLoan, 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 NotesLoan, (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 Guarantyother 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 Documentspurpose 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) aboveprovided 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) abovethe 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 Notwithstanding anything herein to the benefit of Borrowercontrary, 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 pledgetransferee 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 Commitmentcontrary, 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 Assigneetransfer, 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 Acceptancetransfer or assignment, the Eligible Assignee named therein shall be a Lender for all purposes of this AgreementARTICLE 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 Lenderparty, giving effect to each Assignment its successors and Acceptancepermitted 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 abovein 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 Agentother 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 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 AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow providedAgent, (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 AgreementLender, 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 $3,000,0001,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAgreement unless the Administrative Agent otherwise agrees. Upon the effective date of such Assignment and AcceptanceAgreement, 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 AdvancesPro 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 Notesany Note in its possession) to such assignee Lender, Notes a Note evidencing that assignee Lender’s Commitments and/or AdvancesPro 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 LenderLender (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 AcceptanceAgreement, 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 AcceptanceAgreement; (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 3.53.7, 3.63.8, 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 hereunderPro 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 NotesLoans, 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 NotesLoans, or (D) release any Guarantor from its Guarantymaterial 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 Defaultsuch 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 Documentspayment in full of all outstanding senior indebtedness of any SPC, to it will not institute against, or join any Personother 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 contrarycontrary 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) abovea surety, no assignment shall be made without the approval of the Administrative Agentguarantee 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 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 AgreementLender, 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 AdvancesPro 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 AdvancesPro 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 FacilityCommitments.
(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 AgreementPro 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 3.53.6, 3.63.7, 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 hereunderPro 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 AgentCommitments.
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 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 AgreementLender, 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 AdvancesPro 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 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 providedbenefits 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 thatthe 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 claimAcceptance, 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 Documentinstrument 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 Obligationsany 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 Agreementthe 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 LenderBank.
(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 Assigneeall 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 abovea 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 Agreementthe Advances (including such Bank’s participations in Swingline Loans) owing to it); provided, however, provided that (i) such LenderBank’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 LenderBank’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 DocumentsBank 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 DocumentsBoard 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 AgentGovernmental Authority.
Appears in 2 contracts
Sources: Credit Agreement (Baxter International Inc), Credit Agreement (Baxalta 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 BankLender, 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 Assigneeassignment, 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 providedAgent, (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 AgreementLender, 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 $3,000,000the 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 AcceptanceAcceptance 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 AdvancesPro 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 Notesany Note) to such assignee Lender, one or more Notes evidencing that assignee Lender’s Commitments and/or AdvancesPro Rata Share, and to the assigning LenderLender 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 AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such Lender or Eligible AssigneeAssignee (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 AgreementCommitments 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 hereunderPro 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 Lenderssuch participant, (Bb) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch participant, or (Cc) reduce reduces the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyowing 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 will shall be binding upon and inure to the benefit of the Borrower, the Guarantor, the Administrative Agent, Agent and each of the LendersLender, 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 1933this 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 DateInitial 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 itits Advances); provided that, subject that (A) each party to subsection (f) belowsuch 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 Assigneeconsent 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 Lenderextent 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 AgreementAgreement 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 Acceptanceany 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 holderLender, 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; providedsuch 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) 16.1 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 and their respective permitted successors and assigns. Except as otherwise expressly stated in the applicable Transaction Document, except that Borrower may not assign no Party shall assign, or purport to assign, all or any part of the benefit of, or its rights hereunder or thereunder benefits under this Agreement or any interest herein or therein of the other Transaction Documents (together with any causes of Action arising in connection with any of them) without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view Sellers (in the case of assignment by the Purchasers) or the Purchasers (in the case of assignment by any of the Sellers), which any such Party/ies may withhold in its/their absolute discretion.
16.2 Notwithstanding anything to the distribution thereof within contrary herein, no consent shall be required in the meaning case of an assignment:
(A) by the Purchasers in whole or in part to any other member of the Securities Act of 1933, as amended Purchasers’ Group; and
(subject B) by any Seller 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 member of its rights and obligations under this Agreement (including all or a portion of its CommitmentRelevant Seller Group, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) belowin each case, where any such assignment takes place:
(i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, there shall be approved by no adverse impact on the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), other Parties;
(ii) such assignment shall would not reasonably be evidenced by an Assignment and Acceptance, a copy of which shall be furnished expected to result in any delay to the Administrative Agent as hereinbelow provided, (iii) except in the case satisfaction of an assignment to an Affiliate any of the assigning Lender, to another Lender Conditions or the implementation 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 Separation; 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 liabilities of the other Parties under the relevant Transaction Document or other financial institutions this Agreement 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 no greater than such benefits to Borrower does not exceed the cost which Borrower liabilities would have incurred been had the assignment not occurred.
16.3 Any purported assignment in violation of this Clause 16 shall be void.
16.4 Except as otherwise expressly stated in the applicable Transaction Document, no Party shall make a declaration of trust in respect of or enter into any arrangement whereby it agrees to hold in trust for any other person all or any part of the Lender granting such participation absent the participationbenefit of, (iv) Borroweror its rights or benefits under, the Administrative Agent and Transaction Documents.
16.5 Except as otherwise expressly stated in the other Lenders applicable Transaction Document, no Party shall continue subcontract or enter into any arrangement whereby another person is to deal solely and directly with such Lender in connection with such Lender’s rights and perform any or all of 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 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: Deed (Tidewater Inc), Sale and Purchase Agreement (Tidewater 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 requestattempted 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 CommitmentSection 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 thatSection 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 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 Assigneeassignment, 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 delayedwithheld), (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 providedAgent, (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 AgreementLender, 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 $3,000,000the 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 Acceptancerequisite 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 AdvancesPro 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 Notesany Note) to such assignee Lender, one or more Notes evidencing that such assignee Lender’s Commitments and/or AdvancesLoans, and to the assigning LenderLender 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 AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such Lender or Eligible AssigneeAssignee (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 AgreementPro 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 hereunderPro 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 Lenderssuch participant, (B) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch 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 Agentcovenant.
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 Borrower each of the Credit Parties is a Party party will be binding upon and inure to the benefit of Borrowereach 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 BankLender, 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 AssigneeAssignee 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 providedAgent, (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 AdvancesPro 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 Notesany Note) to such assignee Lender, one or more Notes evidencing that assignee Lender’s Commitments and/or AdvancesPro Rata Share, and to the assigning LenderLender 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 AssigneeAcceptance, 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 AgreementPro 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) Borrowerthe 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 hereunderPro 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 Lenderssuch participant, (B) reduce the rate of interest on the Notesowing 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 Agentparticipation.
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 LendersBanks, 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 LenderBank’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 $3,000,000Guaranty 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 Agreementthe 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 Advancesconsent 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 Lenderparty 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 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 obligationsassignor 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 exceptso transferred, if the participation agreement so providesany, 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 Agreementof 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 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 LendersAgent (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 1933sell, 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 Dateparticipations 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 Agreementany 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 whosuch 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) aboveforegoing, 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 AgentIntercreditor 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 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 assignsassigns 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 CommitmentClass 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 Agreementsubject 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 $3,000,000the Administrative Agent or, and (iv) the effective date of any such assignment shall be as if “Trade Date” is specified in the Assignment and AcceptanceAssumption, 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 AcceptanceAssumption, 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 AgreementAgreement 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 AdvancesAssignment 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 Lenderthis 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 AgreementCo-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 AssigneeBorrower, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. BorrowerCo-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 Datecontrary 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 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 pledgeany 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) 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 Lenderseach 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 Datelimitations 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 CommitmentAffiliates 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 thatany 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 hereofgranting 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 3.52.9, 3.62.10, 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 LendersCommitment, (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 Guarantyis 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 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, 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 Owner is not authorized to time following and shall not directly or indirectly (through an equity sale, merger or other transaction) sell, assign or otherwise transfer its interest in this Agreement, in whole or in part, other than in full compliance with Paragraph H of Exhibit D to the Closing DateDefinitive Agreement, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under in which case this Agreement (including all or a portion of its Commitment, the Advances owing shall be assigned 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 any Person that so acquires ownership of the assigning LenderTransmission Facilities.
(c) Contractor shall not assign or otherwise transfer its interest in this Agreement without the prior (written) consent of Owner, which shall be approved by the Administrative Agent and Borrower (neither of which approvals shall not be unreasonably withheld or delayed); provided, however, Contractor may assign, without recourse, this Agreement without the consent of Owner to (i) an Affiliate; (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy any Person acquiring all or substantially all of which shall be furnished to the Administrative Agent as hereinbelow provided, electric transmission assets of Contractor; and/or (iii) except any Person providing operations and maintenance services to Contractor Facilities located in the case vicinity of the Transmission Facilities. Contractor also may assign this Agreement without the consent of Owner to any Person if Contractor remains unconditionally liable for all of the obligations and other Liabilities of such transferee hereunder notwithstanding such transfer. Any and all rights and/or obligations of Contractor under this Agreement may be exercised and/or performed by NUSCO or any other Affiliate of Contractor acting as agent for Contractor, and such performance shall not constitute an assignment and/or assumption of Liability by NUSCO and/or any such Affiliate.
(d) Any purported direct or indirect sale, assignment or other transfer of any interest, in whole or in part, in violation of this Section 13.2 shall be null, void and of no force or effect.
(e) Notwithstanding anything to an Affiliate the contrary in this Section 13.2 or elsewhere in this Agreement and without limiting Contractor's discretion with respect to any proposed transfer, unless otherwise directed by Contractor, this Agreement shall be assigned to any purchaser or other transferee 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 andTransmission Facilities, to the extent of such Commitments and/or Advancesthe transferred interest, for 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 remainder of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing Term under an assumption 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 assignment agreement pursuant to Section 7.1 and such other documents and information as it has deemed appropriate which the transferee agrees 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 be bound by the terms of this Agreement are required in a form acceptable to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at Contractor. Without limiting the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) generality of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lenderforegoing, 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 assumption and obligations under this Agreementassignment, (v) the participation interest shall be expressed as a percentage such purchaser or other transferee of the granting Lender’s Pro Rata Share Transmission Facilities shall demonstrate to Contractor compliance with all 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 requirements 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 applicable to Owner, including the Loan Documents, maintenance of insurance pursuant 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 AgentSection 3.6.
Appears in 2 contracts
Sources: Connecticut Neews Projects Agreement (Public Service Co of New Hampshire), Agreement Re: Connecticut Neews Projects (Uil Holdings Corp)
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 BankBank 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 Datedate 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 Assigneeassignment, 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 LenderRevolving 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 AssigneeAcceptance, 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 theretobearer instrument or obligation within the meaning of Section 163(f) of the Code. BorrowerThis 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 Agreementthe 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 DatePerson 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 NotesBorrower 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 AgentAgent 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 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 Commitmentand 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 unchangedbe 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 3.5the 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) 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 Assigneeassignment, 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 delayedwithheld), (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 providedAgent, (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 AgreementLender, 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 $3,000,000the 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 Acceptancerequisite 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 AdvancesPro 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 Notesany 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 LenderLender 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 AssigneeAcceptance, and receipt of an assignment fee of $3,500 4,000 from such Lender or Eligible AssigneeAssignee (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 AgreementPro Rata Share of its Commitment or 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 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 Lenderssuch participant, (B) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch 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 Agentcovenant.
Appears in 1 contract
Sources: Credit Agreement (Quantum Corp /De/)
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 BorrowerBorrowers, the Administrative Agent, each of the Lenders, and their respective 117 successors and assigns, except that Borrower 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. Any attempted assignment by any Borrower in contravention of this Section 14.8(a) 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 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 Amendment 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 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 each of 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 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 AgreementLender, 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 $3,000,0003,000,000 (or $1,000,000 with respect to any assignment occurring on the Amendment Effective Date) , (iv) the assignment shall assign the same Pro Rata Share of the Line A Commitment and the Line B Commitment, but need not with respect to the Line C Commitment 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. 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 AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees Borrowers agree that it they shall execute and deliver (against delivery by the assigning Lender to Borrower Borrowers of such Lender’s Notesits 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 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: Reducing Revolving and Term Loan Agreement (Station Casinos 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 Paying Agent, the Verification Agent, the Facility Administrator and the Administrative Agent and each of the LendersLender, 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 Bankthe 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 or any Loan Note to a Federal Reserve Bank or other central banking authority 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 itits Advances); provided thatthat during the Availability Period (or, subject with respect to subsection (f) belowthe Class B Lenders, (i) such Eligible Assigneeprior to the Class B Availability Termination Date), if not then no Lender may transfer or assign any portion of its rights and obligations under this Agreement or any Loan Note to a Disqualified Lender or an Affiliate of the assigning a Defaulting Lender, ; provided further that each such assignment (A) shall be approved by substantially in the form of Exhibit F heretoan Assignment Agreement 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 or Defaulting Lender in violation of this Section 10.8, the Borrower may upon notice to the applicable Disqualified Lender or Defaulting Lender and the Administrative Agent, (A) purchase or prepay the Advances held by such Disqualified Lender or Defaulting Lender by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender or Defaulting Lender 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 or Defaulting 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 or Defaulting 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. Disqualified Lenders (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 (iiiB) it has received a copy (x) for purposes of this Agreementany 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; (vany 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 ▇▇▇▇▇▇ 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 Acceptanceany 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 holderLender, 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; providedsuch 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) aboveunder 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 and inure to the benefit of the Borrower, the Administrative Agent, Agent and each of the LendersLender, 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, 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 contrary in the meaning first sentence of the Securities Act of 1933this 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 DateAcknowledgment 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 itits Advances); provided that, subject that (A) each party to subsection (f) belowsuch 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 Assigneeconsent 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; and provided further that no Lender may assign to one or more banks or other entities all or any part or portion of its rights and obligations hereunder (including its Commitment, its Loan Notes or its Advances) to the assigning Lenderextent that any such assignment would result in or occurs after any event by which the initial Lender ceases to own at least 50% of the Outstanding Advances hereunder, shall be approved by without the Administrative Agent and Borrower (neither prior express written consent of which approvals shall ▇▇▇▇▇▇▇ Mac, with such consent not to be unreasonably withheld withheld, conditioned or delayed). Upon, and to the extent of, any assignment (iiunless otherwise stated therein) made by any Lender hereunder, the assignee or purchaser of 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 AgreementAgreement 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 Acceptanceany 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 holderLender, 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; providedsuch 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. 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 1 contract
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 Paying Agent, the Verification Agent, the Facility Administrator and the Administrative Agent and each of the LendersLender, 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 Bankthe 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 and 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 itits Advances); provided thatthat during the Availability Period, subject no Lender may transfer or assign any portion of its rights and obligations under this Agreement or any Loan Note to subsection 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 Lender 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. Disqualified Lenders (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 (iiiB) it has received a copy (x) for purposes of this Agreementany 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; (vany action) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated or any other Transaction [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the Administrative Agent by this Agreement; company if publicly disclosed. 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 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 Acceptanceany 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 holderLender, 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; providedsuch 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 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 Lender’s vote or action with respect to any matter requiring such Lender’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 [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed. 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 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 AgentAgent 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 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 except that Borrower as provided below. No assignment of this Agreement or of any rights or obligations hereunder may not assign its rights hereunder be made by either Seller or thereunder the Agent (by operation of Law or any interest herein 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, however, that the Agent agrees that it is not acquiring its Note with a view shall, on or prior to the distribution thereof within the meaning of the Securities Act of 1933Closing Date, 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 assign its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bankrights, but no such pledge shall release that Lender from its interests, and obligations hereunder or grant to such Federal Reserve Bank Purchaser pursuant to the rights of a Lender hereunder absent foreclosure of such pledgePurchaser Assignment (as defined below).
(b) From time The Priority Noteholders agree that, on or prior to time following the Closing Date, each Lender may assign they shall cause Purchaser to one or more Eligible Assignees all or any portion be organized, and to execute an assignment in a form acceptable to the Agent, subject and pursuant to the Direction Letter, and Seller, which assignment shall designate the Purchaser entity and contain terms in accordance with the following sentence (the “Purchaser Assignment”). Upon the execution of its rights and obligations under the Purchaser Assignment, (a) the references in this Agreement (including all or a portion of its Commitment, to Agent shall apply solely to Purchaser unless the Advances owing to it context otherwise requires and the Note Parties hereto agree that Agent shall have no liability or Notes held by it); provided thatcontinuing obligations of any kind whatsoever hereunder, 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 other than its obligations pursuant to the Administrative Agent as hereinbelow provided, (iii) except limited release provisions 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 $3,000,000Section 9.7 hereof, and (ivb) the effective date of any such assignment Purchaser Assignment shall include representations and warranties similar to those in Article VII, which shall include an agreement by Purchaser to join and 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 bound by the terms of this Agreement are required applicable 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 Purchaser 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 provided 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 clause (a) above, no assignment shall be made without the approval of the Administrative Agent)).
Appears in 1 contract
Sources: Asset Purchase Agreement (Endeavour International Corp)
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 Borrowerof, the Administrative Agent, each of the Lenders, parties hereto and their respective successors and assigns. Except as a result of a Permitted Change in Control, except that Borrower may not neither the Seller, the Distributor nor any Advisor shall assign its rights or obligations hereunder or thereunder in connection herewith or any interest herein (voluntarily, or therein by operation of law or otherwise) without the Program Agent’s and the Purchaser’s prior written consent of all consent. This Agreement and the Lenders. Each Lender represents that it is not acquiring its Note with a view to Program Agent’s and the distribution thereof within the meaning Purchaser’s rights herein (including without limitation in respect 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 CommitmentPurchased Receivables, the Advances owing to it Collections and the Note or Notes held by it); provided that, subject to subsection (fAncillary Rights with respect thereto) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved assignable, in whole or in part, by the Administrative Purchaser and the Program Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment their respective successors 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 Agreementassigns; 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 any proposed Take-out Transaction, prior to distributing to potential investors any offering materials which contain information describing the Seller, any Advisor, the Distributor or any of their respective Affiliates, the Program Agent shall give the Seller a reasonable opportunity to review and comment upon such Lender’s rights and obligations under this Agreementportion of such materials. Unless the Purchaser reasonably determines that disclosure is required in order to comply with Law applicable to such Take-out Transaction, the Purchaser shall not make any disclosure which the Seller reasonably identifies in its comments pursuant to the preceding sentence as material, non-public information concerning the Seller or any of its Affiliates, the release of which would have a material adverse consequence to the Seller or any of its Affiliates (v) the participation interest “Prohibited Financial Information”); provided, however, that in connection with the initial offering of any securities in a Take-out Transaction involving any Purchased Receivables, the Purchaser shall be expressed not make any disclosure which the Seller reasonably identifies as a percentage Prohibited Financial Information. Subject to Section 9.15, each of the granting Lender’s Pro Rata Share of Seller, the Revolving Facility as it then exists Advisors 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 Distributor hereby consents 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 Purchaser 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 Program Agent entering into 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 AgentTake-out Transactions.
Appears in 1 contract
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 BorrowerBorrowers, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except EXCEPT that Borrower 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. Any attempted assignment by any Borrower in contravention of this Section 14.8(a) 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 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. Any Lender that is a fund that invests in bank loans may, without the consent of the Administrative Agent or the Borrowers, pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to any holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; PROVIDED that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments.
(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, PROVIDED that (i) such Eligible Assignee, if not then a Lender or an Affiliate or Related Fund of the assigning a Lender, shall be approved by each of 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 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 AgreementLender, 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 $3,000,0005,000,000, 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 AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees Borrowers agree that it they shall execute and deliver (against delivery by the assigning Lender to Borrower Borrowers of such Lender’s Notesits Note) to such assignee Lender, Notes a Note evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share of the Commitment, 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 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 Borrowers or the performance by Borrower 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 10.1 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 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 Borrowers 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 2,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower Borrowers and the Lenders a revised Schedule 1.1 SCHEDULE 1.1A giving effect thereto. BorrowerBorrowers, 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 FacilityCommitment.
(e) Each Lender may from time to time grant participations to one or more banks Lenders or other financial institutions (INCLUDING another Lender) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share of the Commitment; providedPROVIDED, howeverHOWEVER, that (i) such Lender notifies the Administrative Agent and Borrowers in writing at least five (5) Banking Days in advance of granting such a participation, which notice shall identify the proposed participant, (ii) the proposed participant (if not then a Lender or an Affiliate of the granting Lender’s ) shall be approved by each of the Administrative Agent and (if no Event of Default then exists) Borrowers (neither of which approvals shall be unreasonably withheld or delayed), (iii) such Lender's obligations under this Agreement shall remain unchanged, (iiiv) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iiiv) the participating banks Lenders or other financial institutions shall not be a Lender hereunder for any purpose exceptEXCEPT, if the participation agreement so provides, for the purposes of Sections 3.53.7, 3.63.8, 11.11 14.11 and 11.21 14.22 but only to the extent that the cost of such benefits to Borrower Borrowers does not exceed the cost which Borrower Borrowers would have incurred in respect of the such Lender granting such participation absent the participation, (ivvi) BorrowerBorrowers, 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, (vvii) 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 (viviii) 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 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 the Parent Guaranty, the Sibling Guaranty or any Guarantor from its Guarantymaterial portion of the Collateral (except as otherwise expressly provided for in any Loan Document).
(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 14.8 to the contrary, except thatthe 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 Gaming Board, to the Administrative Agentextent required by applicable Gaming Laws, and to compliance with applicable securities laws.
Appears in 1 contract
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 BorrowerCompany, the Administrative Agent, each of the LendersPurchaser, and their respective successors and permitted assigns. Except as expressly provided in this Agreement, except that Borrower may this Agreement shall not assign its rights hereunder be construed so as to confer any right or thereunder or benefit upon any interest herein or therein without Person other than the prior written consent of all the Lendersparties to this Agreement and their respective successors and permitted assigns. 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 At any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement prior 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 Purchaser may assign to one or more Eligible Assignees all or any portion of its rights and obligations hereunder and under the other Operative Documents to one or more of its Affiliates, to any investor in any of fund controlled by or under common control with the Purchaser, and to the Person listed on Schedule 8.05, but no such assignment shall release or relieve the Purchaser of its obligations under this Agreement (including all or Agreement. The Purchaser may assign a portion of its Commitmentrights and obligations hereunder and under the other Operative Documents representing up to 49% in aggregate of the Shares to any Person or Persons (other than an Affiliate of the Purchaser), upon the prior consent of the Company, which consent shall not be unreasonably withheld, at any time prior the Closing Date, and upon any such assignment, the Advances owing to it Purchaser shall be fully released from all obligations hereunder and under the Note or Notes held by it)other Operative Documents that have been so assigned; provided that, subject for purposes of this sentence, any assignment to subsection (f) belowthe Person listed on Schedule 8.05 of rights to purchase Shares will reduce the number of Shares otherwise permitted to be assigned by the Purchaser under this sentence, (i) by the number of Shares assigned to such Eligible AssigneePerson. Following the Closing Date, if not then a Lender or an Affiliate the Purchaser shall have the right to assign its rights and obligations hereunder to any Person purchasing any of the assigning Lender, shall be approved by Shares from 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 Purchaser. The 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 Company 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 assignable at any purpose except, if time or to any other Person without 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 prior written 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 GuarantyPurchaser.
(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
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 BorrowerBorrowers, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower 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. Any attempted assignment by any Borrower in contravention of this Section 12.8(a) shall be void ab initio. 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)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 (including any Approved Fund of that Lender), shall be approved by each of 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 Assignment and AcceptanceAssumption, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, together with an assignment processing fee of $3500, (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 AgreementLender, 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 $3,000,0005,000,000 (or, in the case of assignments of any term loans, $1,000,000 or such lesser amount as may be approved by the Administrative Agent and the Borrower), and (iv) the effective date Closing Date of any such assignment shall be as specified in the Assignment and AcceptanceAssumption, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAssumption. Upon the effective date Closing Date of such Assignment and AcceptanceAssumption, 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 AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees Borrowers agree that it they shall execute and deliver (against delivery by the assigning Lender to Borrower Borrowers of such Lender’s Notesits 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 AcceptanceAssumption, 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 Borrowers or the performance by Borrower 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 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 AcceptanceAssumption; (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 Assumption 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 AcceptanceAssumption. The Register shall be available during normal business hours for inspection by Borrower 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. BorrowerBorrowers, 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 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 Assignment and Acceptance Assumption 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 FacilityShare.
(e) Each Lender may from time to time grant participations to one or more banks Lenders or other financial institutions (including another Lender) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share; provided, however, that (i) such Lender notifies the Administrative Agent and Borrowers in writing at least five Business Days in advance of granting such a participation, which notice shall identify the proposed participant, (ii) the proposed participant (if not then a Lender or an Affiliate of the granting Lender’s ) shall be approved by each of the Administrative Agent and (if no Event of Default then exists) Borrowers (neither of which approvals shall be unreasonably withheld or delayed), (iii) such Lender's obligations under this Agreement shall remain unchanged, (iiiv) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iiiv) the participating banks Lenders 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 3.7, 12.11 and 11.21 12.22 but only to the extent that the cost of such benefits to Borrower Borrowers does not exceed the cost which Borrower Borrowers would have incurred in respect of the such Lender granting such participation absent the participation, (ivvi) BorrowerBorrowers, 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, (vvii) 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 (viviii) 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 require the consent 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 all of the Administrative AgentLenders pursuant to Section 12.
Appears in 1 contract
Sources: Loan Agreement (Station Casinos Inc)
Binding Effect; Assignment. (a) This Agreement Agreement, the Seller -------------------------- Documents and the other Loan Purchaser 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, any of the Seller Documents or any of the Purchaser Documents shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement, any of the Seller Documents or any of the Purchaser Documents except that Borrower may not assign its as provided below. No assignment of this Agreement, any of the Seller Documents or any of the Purchaser Documents or of any rights or obligations hereunder or thereunder may be made by any party hereto or any interest herein or therein thereto 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 1933other parties hereto or thereto, 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 consent of any Person who, at attempted assignment without the time of making such request or giving such authority or consent, is listed in the Register as a Lender required consents 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 Agreementvoid; provided, however, that the Purchaser may assign this Agreement -------- ------- and any of the Seller Documents or the Purchaser Documents and any or all rights hereunder or thereunder (including, without limitation, the Purchaser's rights to purchase the Assets and the Purchaser's rights to seek indemnification hereunder) (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 Affiliate 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 Purchaser or (ii) pledges described in after the last sentence Closing, to any purchaser or transferee of subsection (a) above, no assignment shall be made without the approval any of the Administrative AgentAssets transferred to Purchaser hereunder or thereunder. Upon any such permitted assignment, the references in this Agreement or any of the Seller Documents or the Purchaser Documents to Purchaser shall also apply to any such assignee unless the context otherwise requires.
Appears in 1 contract
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 Issuing Lender, each of the Lenders, and their respective successors and assigns, except EXCEPT that Borrower may not assign its 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 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 Datetime, 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 CommitmentPro Rata Share, the Advances owing to it and the Note or Notes held by it); 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 each of the Administrative Agent and (if no Event of Default then exists) Borrower (neither none of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (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 AgreementLender, 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 $3,000,00010,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, 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) shall be of a constant and non-varying percentage of the Pro Rata Share of the assigning Lender. Upon the effective date of such Assignment and AcceptanceAgreement, 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 AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it Borrower shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notesits 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 AcceptanceAgreement, 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 AcceptanceAgreement; (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 AcceptanceAgreement. 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 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 Borrower 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 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 FacilityShare.
(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 AgreementPro Rata Share; providedPROVIDED, howeverHOWEVER, 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 exceptEXCEPT, if the participation agreement so provides, for the purposes of Sections 3.53.7, 3.63.8, 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, (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)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 Reduction 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 Guarantythe Guaranty or collateral for the Obligations (except to the extent permitted under Section 11.2(d), or (E) change the definition of "Requisite Lenders."
(f) 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 Commitment 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 a special purpose funding vehicle (an "SPC") of such Granting Lender, identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower agrees 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 or 2.3, provided that (i) nothing herein shall constitute a commitment to make any Loan by any SPC, (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, 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 DefaultSPC, and the Administrative Agent, the other Creditors, Borrower 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 an SPC hereunder shall utilize the Commitment of the Granting Lender 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 Documentspayment in full of all outstanding senior indebtedness of any SPC, to it will not institute against, or join any Personother 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 contrarycontrary 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, the Borrower 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 -101- 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) abovea surety, no assignment shall be made without the approval of the Administrative Agentguarantee or credit or liquidity enhancement to such SPC.
Appears in 1 contract
Sources: Loan Agreement (MGM Mirage)
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 Agents 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). 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 to time following Any Bank may, in the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion ordinary course of its rights business 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 wholaw, at the any 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 assign to one or more banks or other financial institutions in or to entities (a "Purchaser") all or a portion any part of its Revolving Loans, Commitment and its rights and/or and obligations under its Revolving Note and under this Agreement, pursuant to a form of assignment acceptable to such Bank and such Purchaser, provided that (i) the Bank shall have given the Administrative Agent and Borrower not less than seven (7) Banking Days prior written notice of such assignment, (ii) each individual assignment shall be in an amount of not less than $10,000,000, (iii) the prior written consent of the Administrative Agent shall be required prior to an assignment becoming effective with respect to a Purchaser which is not then a Bank or an affiliate thereof, which consent shall not be unreasonably withheld, (iv) unless an Event of Default or Unmatured Event of Default has occurred and is continuing, the prior written consent of Borrower shall be required prior to an assignment becoming effective with respect to a Purchaser which is not then a Bank or an affiliate thereof, which consent shall not be unreasonably withheld, and (v) the Purchaser (excluding any Purchaser that becomes such prior to the expiration of the Primary Syndication Period) shall have paid an assignment fee to the Administrative Agent, for its account, in the amount of $2,500. Notwithstanding the foregoing provisions of this Section 8.08(b), any Bank may at any time assign all or any portions of its Revolving Loans and Revolving Note to a Federal Reserve Bank (but no such assignment shall release any Bank from any of its obligations hereunder).
(c) Upon delivery to the Administrative Agent and Borrower of a notice of assignment, together with any consent required by this Section 8.08, such assignment shall become effective on the effective date specified in such notice. 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 Administrative Agent or any other Bank shall be required to release the transferor Bank with respect to the percentage of the Revolving Loans and Commitment assigned to such Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to this Section 8.08, the transferor Bank and Borrower shall make appropriate arrangements so that a replacement Revolving Note is issued to such transferor Bank and a new Revolving Note or, as appropriate, a replacement Revolving Note is issued to such Purchaser, in each case in principal amounts reflecting its pro rata share of the Aggregate Commitment.
(d) Borrower authorizes each Bank to disclose to any participant (pursuant to Section 8.07 of this Agreement) or Purchaser or any other entity acquiring an interest in this Agreement or its Revolving 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.
(e) This Agreement and all covenants, representations and warranties made herein and in any of the other Loan Documents shall survive the making of the Revolving Loans, the execution and delivery of the Loan Documents and shall continue in effect so long as any Obligations remain unpaid or any Commitment remains outstanding; provided, however, that (i) such Lender’s obligations under this Agreement Section 8.06 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 connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage full 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 Guarantyall Obligations.
(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
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 LendersBanks, and their respective successors and assigns, except that that, Borrower may not assign its their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the LendersBanks. Each Lender Bank represents that it is not acquiring its Note Loans 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 Loans must be within the control of such LenderBank). 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 Pro Rata Share; provided that (i) such assignment shall be of a constant, and not a varying, percentage of all of the assigning Bank's rights and obligations under this Agreement (including all other than any right to make Competitive Loans or a portion of its Commitment, the Advances Competitive Loans owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assigneeii), if not then to a Lender Bank or an Affiliate of the assigning LenderBank, shall be approved consented to by Borrower at all times other than during the Administrative existence of an Event of Default and the Agent and (which approval of Borrower (neither of which approvals shall not be unreasonably withheld or delayed), (iiiii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a Notice of Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iiiiv) except in the case of an assignment to an Affiliate of the assigning LenderBank, to another Lender Bank or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementBank, 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 $3,000,000the Minimum Amount therefor, 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 acceptance by the effective date Agent of such Notice 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 AdvancesPro Rata Share, the assigning Lender Bank 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 Bank to Borrower of such Lender’s Notesany Note) to such assignee LenderBank, one or more Notes evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share, and to the assigning LenderBank if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank.
(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 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.thereby
(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 AssigneeAcceptance, and receipt of an assignment fee of $3,500 3,000 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 10.6 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 to one or more banks or other financial institutions (including another Bank) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share; 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 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, 3.6, 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 Lender granting such participation Bank absent the participation) and Section 10.9 (subject to Section 10.10), (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’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 hereunderBank'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 Lenderssuch participant, (B) reduce the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch participant, (C) reduce the amount of any installment of principal due under the Notes, owing to such participant or (D) release any Guarantor from its Guarantyguarantor.
(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 (Flowserve 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 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 Signing 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, that (i) such Eligible Assigneeassignment, 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 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 Notice of Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (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 AgreementLender, 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 $3,000,000the 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 AcceptanceAcceptance and consent thereto by Administrative Agent, Issuing Lender and Swing Line 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 AdvancesPro 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 Notesany 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 LenderLender if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender; provided that Loans made to ALT shall be evidenced by the ALT Global Note only. 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 AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such Lender or Eligible AssigneeAssignee (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 10.03 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 Person (including another Lender) all or a any portion of its rights Pro Rata Share of its Commitment and/or obligations under this AgreementExtensions 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 10.06 and 10.07, (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, 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 Lenderssuch participant, (B) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch participant, (C) reduce reduces the amount of any installment of principal due under the Notesowing to such participant, or (D) release any Guarantor from its Guaranty.
releases of all or substantially all of the Guarantors or releases of all or substantially all of the Collateral (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 pursuant 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 AgentSection 10.02).
Appears in 1 contract
Binding Effect; Assignment. (a) This All the terms, provisions, covenants, obligations, indemnities, representations, warranties and conditions of this Agreement and shall be enforceable by 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 hereto and their respective permitted successors and assigns, except that Borrower . Prior to Closing this Agreement may not assign its rights hereunder be assigned or thereunder transferred to any other party, firm, corporation or any interest herein or therein other entity, without the prior prior, express and written consent of the other Party, and such consent may be withheld for any reason including convenience. After Closing, this Agreement may not be assigned except in connection with a sale, assignment, or other transfer of all or a portion of the Assets. In the event Buyer sells, transfers, or assigns all or a portion of the Assets, (i) this Agreement shall remain in effect between Buyer and Sellers as to all the Lenders. Each Lender represents that it is not acquiring Assets regardless of such assignment (and Buyer shall remain obligated hereunder), and (ii) Buyer shall require its Note with a view successors and assigns to expressly assume its obligations under this Agreement, to the distribution extent related or applicable to the Assets or portion 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 pledgeacquired by them.
(b) From time to time following Notwithstanding the Closing Dateforegoing, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement within seven (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 (f7) 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 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 execution of this Agreement, with the Commitments and/or Advances therein set forth andBuyer may, by written notice to the extent of such Commitments and/or AdvancesSellers, 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 designate one 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 more subsidiary entities to take such action and title 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 some or all of the obligations Assets. In such event each such subsidiary shall, at Closing, execute a joinder in agreement in the form of Exhibit "P" pursuant to which by the terms of it agrees to become a party to this Agreement are required and expressly accepts and agrees to be performed bound 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 Lenderterms, 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 Assigneeprovisions, conditions, agreements, and receipt indemnities of an assignment fee of $3,500 from such Lender or Eligible Assignee, Buyer set forth herein. In no event shall 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 title to any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting designated subsidiary or 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 execution of any Person who, at joinder in agreement by it pursuant to this provision relieve the time Buyer 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: Purchase and Sale Agreement (Houston Exploration Co)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which a Borrower Party is a Party party will be binding upon and inure to the benefit of Borrowereach Borrower Party, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that that, no Borrower 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 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 Assigneeassignment, if not then to a Lender or an Affiliate of the assigning Lender, shall be approved subject to the prior written consent of Company at all times other than during the existence of a Default or Event of Default and by the Administrative Agent Agent, and Borrower Issuing Lender (neither which approval of which approvals Company 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 providedAgent, (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 AgreementLender, 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 $3,000,0005,000,000, 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 Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAcceptance and (v) such assignee Lender shall become a "Creditor" under and as defined in the Intercreditor Agreement by executing and delivering a counterpart thereof and complying with the provisions thereof. Upon obtaining any consent required as set forth in the effective date prior sentence and payment of such Assignment and Acceptancethe 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 AdvancesPro 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 Notesany 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. For purposes hereof, each mutual fund that is an Affiliate of a Lender shall a 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 AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such Lender or Eligible AssigneeAssignee (including in the case of assignments to Affiliates of assigning Lenders), the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower 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.
(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 AgreementExtensions 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 Company does not exceed the cost which Borrower Company 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 Lenderssuch participant, (B) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch 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 Agentcovenant.
Appears in 1 contract
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 BankBank 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 Datedate 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 itmore Eligible Assignees, other than (i) Borrower and its Subsidiaries and (ii) natural persons; provided that such assignment shall be subject to Borrower’s consent (which shall not be unreasonably withheld) at all times other than during the existence of an Event of Default arising under Section 8.01(a), Section 8.01(b) or Section 8.01(i) and the consent of Administrative Agent (which consent shall not be unreasonably withheld); provided thatthat the consent of Borrower shall not be required with respect to (x) an assignment to another Lender or any Affiliate of a Lender or (y) an assignment of Loans (but for the avoidance of doubt, subject not any Commitments) to subsection any Approved Fund unless, in the cases of clauses (fx) belowand (y), such assignment would result in the aggregate Loans and Commitments of such assignee and its Affiliates in respect of a Class exceeding 15% of the aggregate Commitments and Loans of such Class then outstanding. While any 3-Year Tranche Term Commitments and/or 5-Year Tranche Term Commitments are outstanding, (i) such Eligible Assignee, if not then any assignment of 3-Year Sterling Tranche Term Loans and/or 5-Year Sterling Tranche Term Loans without a Lender or an Affiliate corresponding assignment of the assigning Lenderpro rata amount of 3-Year Dollar Tranche Term Loans or 5-Year Dollar Tranche Term Loans, shall be approved by as applicable, and the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld 3-Year Tranche Term Commitments and/or 5-Year Tranche Term Commitments, as applicable or delayed), (ii) any assignment of 3-Year Dollar Tranche Term Loans and/or 5-Year Dollar Tranche Term Loans without a corresponding assignment of the pro rata amount of 3-Year Sterling Tranche Term Loans or 5-Year Sterling Tranche Term Loans, as applicable, and the 3-Year Tranche Term Commitments and/or 5-Year Tranche Term Commitments, as applicable, shall not be effective. No such assignment shall be evidenced by an Assignment become effective unless and Acceptance, 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 Commitment or Loan, as applicable, 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 AcceptanceAssumption, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAssumption. 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 Acceptancerequisite 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 Assignment and Assumption), and, except for rights and obligations which by their terms survive termination of any Commitments and/or Advancesor the repayment of the Loans, the assigning Lender shall be released from its any further obligations under this AgreementAgreement 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 Lenderevidence 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 LenderRegister.
(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 AssigneeAssumption, 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, Commitments, Extensions of Credit or any other interest of such Lender hereunder and under this Agreementthe 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 extends the Certain Funds Termination Date or the Maturity Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch 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 Lenderssuch participant (except as otherwise provided in Section 10.07(b)), 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 Defaultany 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 DocumentsDocuments (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, 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 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 thatAdministrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding anything to the contrary in this Section 10.04, (a) the written consent of Borrower (in its sole discretion) shall be required for any assignment or participation (other than (i) assignments by a Lender to an Affiliate any of its Affiliates) on or prior to the Certain Funds Termination Date and any such Lender attempted assignment or to another Lender or (ii) pledges described in participation without the last sentence written consent of subsection (a) above, no assignment Borrower shall be made null and void and (b) in connection with any assignment of Commitments on or prior to the Certain Funds Termination Date by a Lender to any of its Affiliates, the assigning Lender shall not be relieved of its obligations (as in effect immediately prior to giving effect to such assignment) to fund Loans in respect of its Commitments pursuant to this Agreement without the approval prior written consent of the Administrative AgentBorrower (in its sole discretion).
Appears in 1 contract
Sources: Term Loan Credit Agreement (NBCUniversal Media, LLC)
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 LendersCreditors, 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 LendersBanks. 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 LenderBank). 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 LenderBank 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 delayedrequired 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 LenderBank, to another Lender Bank or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementBank, 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 $3,000,00010,000,000, 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 AdvancesPro 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 LenderBank, Notes evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share, and to the assigning LenderBank, Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank.
(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 LenderBank.
(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 3.53.7, 3.63.8, 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 hereunderBank'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 LendersBanks, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the LendersBanks, (C) reduce the amount of any installment of principal due under the Notes, Notes or (D) release any Guarantor from its Guarantychange 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 thatthe 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 Agentextent required by applicable Gaming Laws.
Appears in 1 contract
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 LendersLender, 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 1933this 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 pledgehereunder.
(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 itthis 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 Acceptancea 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 providedextent that rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement, have the rights and obligations of a Lender hereunder (iiiincluding 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 $3,000,000matter, 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 Notescompetent 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 Lenderforegoing clause (2).
(cE) By executing and delivering an Assignment and AcceptanceAgreement, the Eligible Assignee Lender assignor thereunder acknowledges and agrees thatthe 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 claimas 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 DocumentTransaction 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 Obligationsany 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 AcceptanceAgreement; (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 Agreementthe 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 Acceptancethis 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 Assigneeassignee, and receipt of an assignment fee of $3,500 from together with any Loan Note subject to such Lender or Eligible Assigneeassignment, 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 thereofof 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, howeverthat 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 AgentAgent 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 and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, 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 Borrower or its Affiliates without the prior written consent of the Lenders shall be null and void; provided that no Person other than the Administrative Agent and 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 must be within the control of such Lender). Any Lender may at any time pledge or grant a security interest in its Note Note, this Agreement or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve BankBank or in connection with a securitization or conduit transaction, but no such pledge or grant shall release that Lender from its obligations hereunder or grant to substitute any such Federal Reserve Bank the rights of a pledgee or grantee for such Lender hereunder absent foreclosure of such pledgepledge or security interest, and neither the Administrative Agent nor any Lender shall grant a security interest in any of the Collateral except to a Federal Reserve Bank or in connection with a securitization or conduit transaction, and in any event, subject to Section 9 of the Security Agreement and the analogous provision in any other Security Document, the Administrative Agent shall, upon the full, complete and final payment of the Obligations and the termination of the Commitments hereunder, release all Liens created under the Security Documents or pursuant to this Section 11.8(a).
(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 it, risk participations 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 $3,000,0005,000,000, 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 AcceptanceAcceptance unless the Administrative Agent otherwise agrees. 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 Commitments, risk participations and/or Advances therein set forth and, to the extent of such Commitments Commitments, risk participations and/or Advances, the assigning Lender shall be released from its further obligations under this AgreementAgreement to the extent of such assignment. 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 Commitments, risk participations and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments Commitments, risk participations 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 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 NotesObligations, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under on the NotesObligations, or (D) release any Guarantor from its Guaranty, other than in connection with a Disposition of all or substantially all of the equity interests in such Guarantor or of all or substantially all of its assets, in either case to the extent permitted by this Agreement.
(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 (West Marine Inc)
Binding Effect; Assignment. (a) This Agreement shall become effective on the date (the "Closing 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 LendersBanks, 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 Revolving Loans shall include a ratable part of such LenderBank's Revolving Loan 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 Revolving Loan 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 E (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 Closing 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 $3,000,000Guaranty 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 Agreementthe 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 Advancesconsent 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 Lenderparty 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.
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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 AgentAgents, 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 AgreementLender, 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, 5,000,000.00; 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 Business 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 Revolving Commitment therein set forth and, to the extent of such Commitments and/or AdvancesPro 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 Notesits Note(s)) to such assignee Lender, Notes Note(s) evidencing that assignee Lender’s Commitments and/or AdvancesPro 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.
(d) The 12.8.4 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 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 2.1 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 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 FacilityCommitment.
(e) 12.8.5 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 AgreementPro 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, 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, ; (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 hereunderPro 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 (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 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 Defaultthe 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 and in which case such release shall not require the Loan Documents, to consent of any Person, in whole 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 AgentRevolving Commitment.
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Binding Effect; Assignment. Subject to the provisions of this Section 17.3, this Agreement shall be binding upon the Parties and their respective successors and permitted assigns and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
(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 be assigned by SONIFI without the prior written consent of all Network, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that SONIH may assign this Agreement without the Lenders. Each Lender represents that it is not acquiring its Note with a view consent of Network to (1) any SONIFI Entity having the distribution thereof within the meaning of the Securities Act of 1933requisite rights, as amended (subject capabilities and authorities 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 fully perform SONIF1's obligations under this Agreement or (ii) any entity acquiring all or substantially all of the assets of SONIFI provided such entity has the rights, capabilities and authorities to a Federal Reserve Bankfully perform SONIFI's obligations hereunder. In the event of any valid assignment of this Agreement by SONIFI_ SONIFI shall be relieved of all obligations arising thereafter, but no such pledge if any, and Network shall release that Lender from its obligations hereunder or grant look solely to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure assignee for enforcement of such pledgeobligations.
(b) From time to time following This Agreement may not be assigned by Network without the Closing Dateprior written consent or SONIFI, each Lender which consent shall not be unreasonably withheld, conditioned or delayed; provided, that Network may assign this Agreement without the consent of SONIFI to one or more Eligible Assignees all or (i) any portion of its rights Network Entity having the requisite rights, capabilities and authorities to fully perform Network's 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 any entity acquiring all or substantially all of the last sentence assets of subsection (a) aboveNetwork. In the event of any valid assignment of this Agreement by Network, no assignment Network shall be made without relieved of all obligations arising thereafter, if any, and SONIFI shall look solely to the approval assignee for enforcement of the Administrative Agentsuch obligations.
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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 LendersBanks, 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)Banks. 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 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 Bank or an Affiliate of the assigning LenderBank, shall be approved by each of the Administrative Agent and Borrower (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 a Notice of Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment to an Affiliate of the assigning LenderBank, to another Lender Bank or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementBank, 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 $3,000,000the 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 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 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 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 6.1 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 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 LenderBank.
(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 AssigneeAcceptance, 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 Banks 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.
(e) Each Lender Bank may from time to time grant participations to one or more banks or other financial institutions (including another Bank) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share; 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 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, 3.6, 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 Lender granting such participation Bank 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’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), or in the granting Lender’s rights and obligations hereunderBank'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 Lenderssuch participant, (B) reduce the rate of interest on the Notesowing 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 (D) release any Guarantor from its Guarantyowing 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 (Science Applications International Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is are a Party will be binding upon and inure to the benefit of Borrower, the Administrative Managing Agent, each of the LendersBanks, 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 LendersBanks. 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 LenderBank). 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 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 -------- Bank or an Affiliate of the assigning LenderBank, shall be approved by each of the Administrative Managing 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 Managing Agent as hereinbelow provided, (iii) except in the case of an assignment to an ------ Affiliate of the assigning LenderBank, to another Lender Bank or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementBank, the assignment assign ment 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 $3,000,00010,000,000, 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 Managing 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 of the Commitment therein set forth and, to the extent of such Commitments and/or AdvancesPro 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 Notesits Note) to such assignee LenderBank, Notes a Note evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share of the Commitment, and to the assigning LenderBank, Notes a Note evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank.
(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
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which any Borrower is a Party will be binding upon and inure to the benefit of Borrowerthe Borrowers, the Administrative Agent, each of the LendersCreditor Parties, and their respective successors and assigns, except that Borrower the 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. Each Lender represents that it is not acquiring its Note interest in the Loans 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 interest 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 interest in the Loans 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 Datetime, 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 Pro Rata Share to it and the Note or Notes held by it)any Eligible Assignee; provided that, subject to subsection (f) below, that (i) such Eligible Assigneethe assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower Borrowers (neither of which approvals approval shall not be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) such assignment shall be of the same Pro Rata Share of each Commitment, (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 assigning Lender under this AgreementLender, 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, 5,000,000 and (ivv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAgreement. Upon the effective date of such Assignment and AcceptanceAgreement, 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 AdvancesPro 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) 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 AcceptanceAgreement, the Eligible Assignee assignee Lender 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 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 82- make its own credit analysis and decision to enter into such Assignment and AcceptanceAgreement; (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 Assigneeassignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assigneeassignee, the Administrative Agent shall, promptly following the effective date thereof, provide to thereof notify 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 each Lender of the Pro Rata Shares identity of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any new 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 AgreementPro 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, 3.63.7, 11.11 and 11.21 11.12 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) Borrowerthe 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 assigning 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 assigning 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 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, Lenders or (B) reduce the rate of interest on the NotesLoans, 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 (Jakks Pacific 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 a Note or any other instrument evidencing its rights as a Lender under this Agreement (including to a Federal Reserve BankBank 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 Datedate 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 thatmore 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 8.18.01(a), Section 8.18.01(b) or Section 8.18.01(i) and Acceptancethe 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 AcceptanceAssumption, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAssumption. 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 Acceptancerequisite 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 AdvancesAssignment 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 AgreementAgreement 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 Lenderevidence 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 LenderRegister.
(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 AssigneeAssumption, 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 Agreementthe 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 Lenderssuch 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 Lenderssuch 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 Defaultany 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 DocumentsDocuments (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 1 contract
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 LendersBanks, 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 LendersBanks. Each Lender Bank represents that it is not acquiring its Note Loans 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 Loans must be within the control of such LenderBank). 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 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 Assigneeassignment, if not then to a Lender Bank or an Affiliate of the assigning LenderBank, shall be approved consented to by Borrower at all times other than during the existence of an Event of Default and the Administrative Agent and (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 Notice of Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment to an Affiliate of the assigning LenderBank, to another Lender Bank or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementBank, 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 $3,000,000the 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 acceptance by the effective date Administrative Agent of such Notice 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 AdvancesPro Rata Share, the assigning Lender Bank shall be released from its further obligations under this Agreement. Borrower agrees that it they shall execute and deliver upon request (against delivery by the assigning Lender Bank to Borrower of such Lender’s Notesany Note) to such assignee LenderBank, one or more Notes evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share, and to the assigning LenderBank if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank.
(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 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 6.1 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 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 LenderBank.
(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 AssigneeAcceptance, 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 10.6 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 to one or more banks or other financial institutions (including another Bank) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share; 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 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, 3.6, 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 Lender granting such participation Bank absent the participation) and Section 10.9 (subject to Section 10.10), (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’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 hereunderBank'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 Lenderssuch participant, (B) reduce the rate of interest on the Notesowing 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 (D) release any Guarantor from its Guarantyowing 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 (Todd Ao 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 LendersBanks, 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)Banks. 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 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 Bank or an Affiliate of the assigning LenderBank, shall be approved by each of the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed; it being understood that it shall not be 77 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 a Notice of Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment to an Affiliate of the assigning LenderBank, to another Lender Bank or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementBank, 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 $3,000,000the 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 acceptance by the effective date Administrative Agent of such Notice 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 AdvancesPro Rata Share, the assigning Lender Bank 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 Bank to Borrower of such Lender’s Notesany Note) to such assignee LenderBank, one or more Notes evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share, and to the assigning LenderBank if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank.
(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 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 6.1 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 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 78 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 LenderBank.
(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 AssigneeAcceptance, 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 Banks 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.
(e) Each Lender Bank may from time to time grant participations to one or more banks or other financial institutions (including another Bank) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share; 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 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, 3.6, 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 Lender granting such participation Bank 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’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), or in the granting Lender’s rights and obligations hereunderBank'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 Lenderssuch participant, (B) reduce the rate of interest on the Notesowing 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 (D) release any Guarantor from its Guarantyowing 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 (Science Applications International 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 their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Any attempted assignment by Borrower in contravention of this Section 12.8(a) shall be null and void. 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 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 each of 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 Assignment and AcceptanceAgreement, 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 AgreementLender, 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, and (iv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAgreement. Upon the effective date of such Assignment and AcceptanceAgreement, 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 AdvancesPro 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 relevant Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share, and to the assigning Lender, a Note or Notes evidencing the remaining balance Pro Rata Share of the Commitments and/or Advances Commitments, if any, retained by the assigning Lender.
(c) By executing and delivering an Assignment and AcceptanceAgreement, 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 AcceptanceAgreement; (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 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.each
Appears in 1 contract
Sources: Reducing Revolving Loan Agreement (Station Casinos 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
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 pledgeany 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 AgentCo-Borrowers, each of the LendersCreditors, 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 Datetime, 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 Commitmentthe 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 AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iiiiv) 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 AgreementLender, 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 $3,000,0001,000,000, and (ivv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, 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 Acceptancenon-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 AcceptanceAgreement, 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 AdvancesPro 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 AcceptanceAgreement, 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 AcceptanceAgreement; (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 AcceptanceAgreement. 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 FacilityShare.
(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 AgreementPro 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 3.53.7, 3.63.8, 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 DefaultSPC, 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 Documentspayment in full of all outstanding senior indebtedness of any SPC, to it will not institute against, or join any Personother 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 contrarycontrary 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) abovea surety, no assignment shall be made without the approval of the Administrative Agentguarantee or credit or liquidity enhancement to such SPC.
Appears in 1 contract
Sources: Loan Agreement (MGM Mirage)
Binding Effect; Assignment. (a) This All of the terms, covenants, representations, warranties and conditions of this Merger Agreement and the other Loan Documents to which Borrower is a Party will be are binding upon upon, and inure to the benefit of Borrowerand are enforceable by, the Administrative Agent, each of the Lenders, parties hereto and their respective successors successors, representatives and permitted assigns. Nothing expressed or referred to herein is intended or is to be construed to give any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect of this Merger Agreement, or any provision herein contained, it being the intent of the parties hereto that this Merger Agreement, the assumption of obligations and statements of responsibilities hereunder, and all other conditions and provisions hereof are for the sole benefit of the parties to this Merger Agreement and for the benefit of no other person, except that Borrower may not as expressly provided for herein. Nothing in this Merger Agreement will act to relieve or discharge the obligation or liability of any third party to any party to this Merger Agreement, nor will any provision give any third party any right of subrogation or action over or against any party to this Merger Agreement, except as expressly provided for herein. No party to this Merger Agreement will assign its rights hereunder this Merger Agreement, by operation of law or thereunder otherwise, in whole or any interest herein or therein in part, without the prior written consent of all the Lendersother parties. Each Lender represents Except as provided for in the preceding sentence, any assignment made or attempted in violation of this Section is void and of no effect. IN WITNESS WHEREOF, PC Bancorp and CU Merger Sub II have caused this Merger Agreement to be signed in their respective corporate names as of the date and year first above written. By: Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Chairman and Chief Executive Officer By: Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Corporate Secretary By: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: President and Chief Executive Officer By: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Corporate Secretary CU Bancorp hereby joins in the foregoing Merger Agreement, and undertakes that it is not acquiring its Note with a view will be bound thereby and will duly perform all acts and things therein referred to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject or provided 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 done 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 1 contract
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 there under 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 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)Commitment and/or Extensions of Credit; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, if not then to a Lender or an Affiliate of the assigning Lender, shall be approved by require the approval of 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 or Administrative Agent or Issuing Lender, as the case may be, shall not be unreasonably withheld, 114 121 conditioned or delayed and if Borrower does not respond during such ten (neither 10) Business Days after receipt of which approvals a Notice of Assignment and Acceptance, such assignment shall be unreasonably withheld or delayeddeemed approved), (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 providedAgent, (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 AgreementLender, 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 $3,000,000the 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 of Assignment and AcceptanceAcceptance and approval 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 AdvancesPro 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 Notesany 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 LenderLender 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 AssigneeAcceptance, 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 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 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 AgreementPro Rata Share of its Commitment and 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 115 122 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, 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 Lenderssuch participant, (B) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch participant, or (C) reduce reduces the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyowing 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 (Apartment Investment & Management Co)
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 Borrowereach 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 BankLender, 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 AssigneeAssignee 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 providedAgent, (iii) any such assignment shall require the written consent of each 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 AdvancesPro 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 Notesany Note) to such assignee Lender, one or more Notes evidencing that assignee Lender’s Commitments and/or AdvancesPro Rata Share, and to the assigning LenderLender 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 AssigneeAcceptance, 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 AgreementPro 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) Borrowerthe 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 hereunderPro 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 Lenderssuch participant, (B) reduce the rate of interest on the Notesowing 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 Agentparticipation.
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 the Company is a Party party will be binding upon and inure to the benefit of Borrowerthe Company, the Administrative Agent, each of the Lenders, Banks and their respective successors and assigns, except that Borrower that, 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 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 Banks and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. 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 BankBank (without the consent of, or notice to the Agent or the Company), 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 Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitment and/or Loans; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, if not then to a Lender Bank or an Affiliate of the assigning LenderBank, requires the consent in advance of the Company at all times other than during the existence of a Default or Event of Default and the Agent (which approval of the Company and the Agent shall be approved by the Administrative Agent and 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 providedAgent, (iii) except in the case of an assignment to an Affiliate of the assigning LenderBank, to another Lender Bank or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementBank, 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 the $3,000,0001,000,000, 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 acceptance by the effective date Agent of such Notice of Assignment and AcceptanceAcceptance and consent thereto by Agent and the Company, if required, and payment of the requisite fee described below, 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 AdvancesPro Rata Share, the assigning Lender Bank 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 Bank to Borrower the Company of such Lender’s Notesany Note) to such assignee LenderBank, one or more Notes evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share, and to the assigning LenderBank if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank. The Agent's consent to and acceptance of any assignment shall not be deemed to constitute any representation or warranty by any Agent-Related Person as to any matter. The Agent shall record the information contained in the Notice of Assignment and Acceptance in the 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 Notice of Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assigneethe assigning Bank (including Affiliates of assigning Banks), the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower the Company and the Lenders Banks 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 Lender Bank 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 Bank) all or a any portion of its rights Pro Rata Share of its Commitment and/or obligations under this AgreementLoans; 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 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, 3.6, 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 Lender granting such participation Bank absent the participation) and subject to Sections 2.13 and 10.9, (iv) Borrowerthe Company, 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, (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 hereunderBank'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 Bank 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 Revolving Termination Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch participant, or (C) reduce reduces the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyowing 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
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 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 Banks.
(B) Any Bank may, in the Lenders. Each Lender represents that it is not acquiring ordinary course of its Note business and in accordance with a view to the distribution thereof within the meaning of the Securities Act of 1933applicable law, 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 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, pursuant to a form of assignment acceptable to such Bank and such Purchaser. 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. Notwithstanding the foregoing provisions of this Section 8.8(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).
(C) Upon delivery to the Administrative Agent and Borrower of a notice of assignment, together with any consent required by this Section 8.8, such assignment shall become effective on the effective date specified in such notice. 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 Administrative 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 8.8, 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.
(D) Borrower authorizes each Bank to disclose to any participant (pursuant to Section 8.7) 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.
(E) 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 8.6 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
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 itCommitments); 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 AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow providedAgent, (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 AgreementLender, 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 AcceptanceAgreement, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAgreement unless the Administrative Agent otherwise agrees. Upon the effective date of such Assignment and AcceptanceAgreement, 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 AdvancesPro 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 LenderLender (in each case, if Notes are requested by such assignee under Section 2.1).
(c) By executing and delivering an Assignment and AcceptanceAgreement, 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 AcceptanceAgreement; (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 3.53.7, 3.63.8, 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 NotesLoans, 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 NotesLoans, or (D) release any Guarantor from its Guarantymaterial 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 Defaultsuch 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 Documentspayment in full of all outstanding senior indebtedness of any SPC, to it will not institute against, or join any Personother 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 contrarycontrary 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) abovea surety, no assignment shall be made without the approval of the Administrative Agentguarantee 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 AgentAgents, 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 AgreementLender, 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 AdvancesPro 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 Notesits Note(s)) to such assignee Lender, Notes Note(s) evidencing that assignee Lender▇▇▇▇▇▇’s Commitments and/or AdvancesPro 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
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 Lenderseach 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 Datelimitations 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; providedAffiliates 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 Personother 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. (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 LendersLender, 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 1933contrary 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 BankProgram 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 itits Advances); provided thatprovided, 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 Assigneeconsent 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 Acceptanceuntil, 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 providedappropriate (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 Agreementhereunder, 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 AgreementAgreement 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 Acceptanceany 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 effectiveavailable 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 whoLender, 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 Agreementparticipation a “Participant”); provided, howeverso 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 Lenderparticipation, 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 DocumentAgreement; (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 thereoffavor of Commonwealth, and any requestin 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 LendersLender, 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 Bankthe 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 itits Advances); provided thatthat 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 (iiiB) it has received a copy (x) for purposes of this Agreementany 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; (vany 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 Acceptanceany 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 holderLender, 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; providedsuch 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) aboveunder 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 assignsassigns 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 Agreementof 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 obligationsthereof, (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 AgentSection 9.
Appears in 1 contract
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 LendersLender, 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 , and any assignment by the Borrower in violation of this Section 9.8 shall be null and void.
(b) Notwithstanding anything in this Agreement to the distribution thereof within the meaning of the Securities Act of 1933contrary, 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, or any other instrument evidencing party to this Agreement, assign all or any portion of its rights as a Lender under this Agreement 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 pledgehereunder.
(bc) From time Subject to time following the Closing Dateterms 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 Commitment 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 no consent of the Advances owing Borrower shall be required for an assignment 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 a Lender or, if an Event of Default has occurred and is continuing and (y) the assigning LenderAdministrative 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 AgreementAgreement 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 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 Acceptanceany 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 742613903 21686243 available for inspection by the Borrower and binding on any subsequent holderLender, 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 without the consent of ▇▇▇▇▇▇▇▇, except that any sale of a participation interest to one or more banks or other financial institutions in or to all or a portion Competitor shall require the consent of its rights and/or obligations under this AgreementBorrower (each such recipient of a participation a “Participant”); provided, however, provided that (i) any such Lender will use commercially reasonable efforts to provide the Borrower with notice of such participation and (ii) after giving effect to the sale of such participation, 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 ▇▇▇▇▇▇ 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 2.14(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 (loanDepot, Inc.)
Binding Effect; Assignment. (a) This Subject to the provisions of this SECTION 11.8, 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 LendersBanks, and their respective successors and assigns, except 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 LendersBanks. 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 LenderBank). 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 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, PROVIDED that (i) such Eligible Assignee, if not then a Lender Bank or an Affiliate of the assigning LenderBank, shall be approved by each of the Administrative Agent and 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 EXCEPT in the case of an assignment to an Affiliate of the assigning LenderBank, to another Lender Bank or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementBank, 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 $3,000,00010,000,000, (iv) the assignment shall assign the same Pro Rata Share of the Line A Commitment and the Line B Commitment, (v) such assignment shall not subject Borrower (solely as a consequence of the assignment) to any additional costs, expenses, liabilities, taxes, assessments or other charges under SECTIONS 3.6, 3.7 or 3.9(d) and (ivvi) 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 three (53) 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 Pro Rata Share of the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or AdvancesPro 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 NotesBank's Note) to such assignee LenderBank, Notes evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share of the Commitments, and to the assigning LenderBank, Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank.
(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 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 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 LenderBank.
(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 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 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 Any Bank may from time to time grant participations to one or more banks or other financial institutions (INCLUDING another Bank) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share of the Commitments; providedPROVIDED, howeverHOWEVER, 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 of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender Bank hereunder for any purpose exceptEXCEPT, if the participation agreement so provides, for the purposes of Sections 3.5SECTIONS 3.6, 3.63.7, 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 Lender granting such participation Bank 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’s Bank's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Bank'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 hereunderBank'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 OTHER THAN those which (A) extend any Amortization the Line A Maturity Date, any applicable Line B Maturity Date or any other date upon which any payment of money is due to the LendersBanks, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the LendersBanks, (C) reduce the amount of any installment of principal due under the Notes, or (D) change the definition of "Requisite Banks" or (E) 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 material portion of the Administrative AgentCollateral.
Appears in 1 contract
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 Borrowereach 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 BankLender, 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) belowthat 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 AdvancesPro 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 Notesany Note) to such assignee Lender, one or more Notes evidencing that assignee Lender’s Commitments and/or AdvancesPro Rata Share, and to the assigning LenderLender 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 AssigneeAcceptance, 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 AgreementPro 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) Borrowerthe 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 hereunderPro 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 Lenderssuch participant, (B) reduce the rate of interest on the Notesowing 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 Agentparticipation.
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 their respective permitted successors and assigns. No party to this Agreement may assign or delegate, except that Borrower may not assign its rights hereunder by operation of law or thereunder otherwise, all or any interest herein portion of its rights, obligations or therein liabilities under this Agreement without the prior written consent of the other parties to this Agreement; provided, however, that, without prior written consent, (a) Parent and Merger Sub may assign this Agreement and all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning or any portion of the Securities Act of 1933, as amended (subject their respective rights and obligations hereunder to any requirement that disposition direct or indirect wholly-owned Subsidiary of such Note must be within Parent or to any insurer under 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 BankR&W Insurance Policy, 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 Parent may assign to one or more Eligible Assignees all or any portion of its rights and obligations under pursuant to this Agreement (including from and after the Effective Time in connection with a merger or consolidation involving Parent or other disposition of 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 substantially all of the assigning Lenderassets of Parent or the Surviving Corporation, 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 Parent may assign all 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 pursuant to this Agreement; providedAgreement upon or following the Closing for collateral security purposes to any Debt Financing Source, howeverand (d) Parent may designate, by written notice to the Company, a Subsidiary that (i) is wholly owned by Parent to be merged with and into the Company in lieu of Merger Sub, in which event all references in this Agreement to Merger Sub shall, to the fullest extent permitted by applicable Laws, be deemed references to such Lender’s obligations under Subsidiary, and in that case, all representations and warranties made in this Agreement with respect to Merger Sub as of the date of this Agreement shall remain unchanged, (ii) be deemed representations and warranties made with respect to such Lender shall remain solely responsible to Subsidiary as of the other parties hereto for the performance date of such obligationsdesignation. No assignment by any party shall relieve such party of any of its obligations hereunder, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so providesincluding, for the purposes avoidance of Sections 3.5doubt, 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 ▇▇▇▇▇▇’s Minimum Cash Requirement 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 Section 6.16(i). Except 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 this Section 10.8, any other Loan Document purported assignment without such prior written consents shall, to the contraryfullest extent permitted by Law, except that, other than (i) assignments by a Lender to an Affiliate be void and 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 Agentforce and effect whatsoever.
Appears in 1 contract
Sources: Merger Agreement (Acuren Corp)
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 BorrowerBorrowers, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except EXCEPT that Borrower 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. Any attempted assignment by any Borrower in contravention of this Section 14.8(a) 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 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 Amendment 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 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, PROVIDED 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 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 Commitments Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (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 Commitments of the assigning Lender under this AgreementLender, 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 $3,000,0003,000,000 (or $1,000,000 with respect to any assignment occurring on the Amendment Effective Date) , (iv) the assignment shall assign the same Pro Rata Share of the Line A Commitment and the Line B Commitment 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. 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 AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees Borrowers agree that it they shall execute and deliver (against delivery by the assigning Lender to Borrower Borrowers of such Lender’s Notesits Note) to such assignee Lender, Notes a Note evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share of the Commitments, 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 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 Borrowers or the performance by Borrower 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 10.1 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 Borrowers 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 2,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower Borrowers and the Lenders a revised Schedule 1.1 SCHEDULE 1.1A giving effect thereto. BorrowerBorrowers, 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 FacilityCommitments.
(e) Each Lender may from time to time grant participations to one or more banks Lenders or other financial institutions (INCLUDING another Lender) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share of the Commitments; providedPROVIDED, howeverHOWEVER, that (i) such Lender notifies the Administrative Agent and Borrowers in writing at least five (5) Banking Days in advance of granting such a participation, which notice shall identify the proposed participant, (ii) the proposed participant (if not then a Lender or an Affiliate of the granting Lender’s ) shall be approved by each of the Administrative Agent and (if no Event of Default then exists) Borrowers (neither of which approvals shall be unreasonably withheld or delayed), (iii) such Lender's obligations under this Agreement shall remain unchanged, (iiiv) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iiiv) the participating banks Lenders or other financial institutions shall not be a Lender hereunder for any purpose exceptEXCEPT, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 3.7, 14.11 and 11.21 14.22 but only to the extent that the cost of such benefits to Borrower Borrowers does not exceed the cost which Borrower Borrowers would have incurred in respect of the such Lender granting such participation absent the participation, (ivvi) BorrowerBorrowers, 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, (vvii) 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 (viviii) 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 Reduction 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 the Parent Guaranty, the Sibling Guaranty or any Guarantor from its Guarantymaterial portion of the Collateral (except as otherwise expressly provided for in any Loan Document).
(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 14.8 to the contrary, except thatthe 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 Commitments shall be made without subject to the approval of any Gaming Board, to the Administrative Agentextent required by applicable Gaming Laws, and to compliance with applicable securities laws.
Appears in 1 contract
Sources: Reducing Revolving Loan Agreement (Station Casinos 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 AgentAgents, each of the LendersBanks, 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)Banks. Any Lender Bank may at any time pledge its Note Notes or any other instrument evidencing its rights as a Lender under this Agreement Bank hereunder 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 Effective 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 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 LenderBank, shall be approved by each of the Administrative Agent (which approval shall not be unreasonably withheld) and by Borrower (neither of which approvals approval shall not be unreasonably withheld or delayedwithheld), (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 LenderBank, to another Lender Bank or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementBank, 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 $3,000,00010,000,000 and that is not an integral multiple of $1,000,000, (iv) except in the case of an assignment of the entire remaining Commitment of the assigning Bank, giving effect to the assignment, the assigning Bank will not be in violation of its Applicable Minimum Hold Requirement 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. 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, Agreement with the Commitments and/or Advances Pro Rata Shares of the Commitment therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Shares, 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 Notesits Notes under this Agreement) to such assignee LenderBank, Notes evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share, and to the assigning LenderBank, Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank.
(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 Shares of the Commitment 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 Obligationsits obligations under this Agreement; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 this Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent 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 LenderBank.
(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 Commitment Assignment and Acceptance executed by any Lender Bank and an Eligible Assignee, and receipt of an assignment fee of $3,500 4,000 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following at least one Banking Day prior to 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 to one or more banks or other financial institutions (including another Bank) in or to all or a portion its Pro Rata Share of its rights and/or obligations under this Agreementthe Commitment; provided, however, that (i) such Lender’s participant, if not an Affiliate of the granting Bank, shall be approved by Borrower (which approval shall not be unreasonably withheld), (ii) such Bank's obligations under this Agreement shall remain unchanged, (iiiii) such Lender Bank shall remain solely responsible to the other parties hereto and thereto for the performance of such obligations, (iiiiv) the participating banks bank or other financial institutions institution shall not be a Lender Bank hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 recovery of eurodollar costs or capital adequacy expenses or indemnifications provided to the Banks under this Agreement 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, (ivv) the participating bank or other financial institution shall be prohibited from transferring, encumbering or granting any sub-participation interest in the participation interest, (vi) Borrower, the Administrative Agent 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, (vvii) the participation interest granted shall not be expressed as with respect to 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 Commitment equivalent to less than $10,000,000, (viii) giving effect to the Revolving Facility (or the aggregate Commitments pertaining thereto)participation, or in the granting Lender’s rights and obligations hereunderBank will not be in violation of its Applicable Minimum Hold Requirement, so long as the amount of the participation interest is not affected thereby and (viix) 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 the maturity dates or any other date upon which any payment of money is due to the LendersBanks, (B) reduce the rate of interest on the Notesinterest, any fee or any other monetary amount payable to the LendersBanks, (C) reduce the amount of any installment of principal due under to the NotesBanks thereunder, or (D) release any Guarantor Subsidiary from its obligations under the Subsidiary Guaranty.
, or (fE) Borrower agrees that upon the occurrence and during the continuance release any material portion of any Event collateral securing any 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 obligations of Borrower to the contraryBanks and (x) to the extent that the holder of the participation interest is granted consent rights with respect to the matters described in clause (ix), except that, other than (i) assignments such rights must be subject to a voting procedure whereby the holders of the entire Pro Rata Share of the Commitment held by the participating Bank shall act in such matters in accordance with the vote of a Lender to an Affiliate majority-in-interest 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 Pro Rata Share of the Administrative AgentCommitment.
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Binding Effect; Assignment. (a) This Amended Credit Agreement shall become effective when it shall have been executed by Borrower, Agent and the other Loan Documents to which Borrower is a Party will by each Bank 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 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 LendersBanks, 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 (subject to amended), provided, that in the case of any requirement that disposition of such Note must be within participation, the control of such Lender). Any Lender may at participant shall not have any time pledge its Note rights under this Amended Credit Agreement, the Notes or any other instrument evidencing its Related Writing (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 a Lender if such Bank had not sold such participation; and provided further, that no Bank shall transfer, assign or grant any participation under this Amended Credit Agreement under which the participant shall have rights to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder approve any amendment to or grant to such Federal Reserve Bank the rights waiver of a Lender hereunder absent foreclosure of such pledgethis Amended Credit Agreement or any Related Writing.
(b) From time to time following Notwithstanding the Closing Dateforegoing, each Lender (i) any 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, Loans and/or Commitments and its rights and obligations hereunder to an affiliate of such Bank and (ii) with the Advances owing to it consent of the Agent and the Note Borrower so long as no Possible Default or Notes held by it); provided that, subject to subsection Event of Default then exists (f) below, (i) such Eligible Assignee, if which consents shall 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), 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 Securities Act of 1933, as amended), provided, that (A) any assignment of a Bank's Revolving Loans shall include a ratable part of such Bank's Revolving Loan 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 Revolving Loan Commitment to the extent any letters of credit are outstanding. No assignment pursuant to subsection (ii) such assignment of the immediately preceding sentence shall be evidenced by in an Assignment and Acceptanceaggregate amount less than Ten Million Dollars ($10,000,000). If any Bank so sells all or a part of its rights hereunder or under any Note, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except any reference in the case of an assignment to an Affiliate of the assigning Lender, to another Lender this Amended Credit Agreement 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 Note to such assigning Lender that is equivalent Bank shall thereafter refer to less than $3,000,000, such Bank and (iv) to the effective date respective assignee to the extent of any such assignment their respective interests and the respective assignee 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 andhave, to the extent of such Commitments and/or Advancesassignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender Bank. Each assignment pursuant to Section 13.08(b)(ii) shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery effected by the assigning Lender Bank and the assignee Bank executing a Bank Assignment and Assumption Agreement substantially in the form of Exhibit E (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 Closing Date, the Borrower of such Lender’s Notes) will issue new Notes to such the respective assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance Bank (upon delivery of the Commitments and/or Advances retained by existing Note or Notes of such assigning Bank) in conformity with the requirements of this Amended Credit Agreement and (Z) the Agent shall receive at the time of each such assignment, from the assigning Lenderor assignee Bank, the payment of a nonrefundable assignment fee of $3,000.
(c) By executing and delivering an Assignment and AcceptanceNotwithstanding any other provisions of this Section 13.08, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner no transfer or assignment of the rights and interests or 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 Bank hereunder 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 grant 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 participations therein 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 Assigneepermitted if such transfer, 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 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 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 FacilityState.
(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
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 Borrowerof, the Administrative Agent, each of the Lenders, parties hereto and their respective successors and assigns. Except as a result of a Permitted Change in Control relating to the Seller, except that Borrower may not the Advisor or the Distributor, neither the Seller nor the Distributor shall assign its rights or obligations hereunder or thereunder in connection herewith or any interest herein (voluntarily, or therein by operation of law or otherwise) without the Program Agent's and the Purchaser's prior written consent of all consent. This Agreement and the Lenders. Each Lender represents that it is not acquiring its Note with a view to Program Agent's and the distribution thereof within the meaning Purchaser's rights herein (including without limitation in respect 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 CommitmentPurchased Receivables, the Advances owing to it Collections and the Note or Notes held by it); provided that, subject to subsection (fAncillary Rights with respect thereto) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved assignable, in whole or in part, by the Administrative Purchaser and the Program Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment their respective successors 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 Agreementassigns; 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 any proposed Take-out Transaction, prior to distributing to potential investors any offering materials which contain information describing the Seller, the Advisor, the Distributor or any of their respective Affiliates, the Program Agent shall give the Seller a reasonable opportunity to review and comment upon such Lender’s rights and obligations under this Agreementportion of such materials. Unless the Purchaser reasonably determines that disclosure is required in order to comply with Law applicable to such Take-out Transaction, the Purchaser shall not make any disclosure which the Seller reasonably identifies in its comments pursuant to the preceding sentence as material, non-public information concerning the Seller or any of its Affiliates, the release of which would have a material adverse consequence to the Seller or any of its Affiliates (v) the participation interest "Prohibited Financial Information"); provided, however, that in connection with the initial offering of any securities in a Take-out Transaction involving any Purchased Receivables, the Purchaser shall be expressed not make any disclosure which the Seller reasonably identifies as a percentage Prohibited Financial Information. Subject to Section 9.15, each of the granting Lender’s Pro Rata Share of Seller, the Revolving Facility as it then exists Advisor 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 Distributor hereby consents 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 Purchaser 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 Program Agent entering into 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 AgentTake-out Transactions.
Appears in 1 contract
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 BankBank 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 Datedate 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 thatmore 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 8.01(a), Section 8.01(b) or Section 8.01(i) and Acceptancethe consent of Administrative Agent (which consent shall not be unreasonably withheld); provided that the consent of Borrower shall not be required with respect to (x) an assignment to another Lender or any Affiliate of a Lender or (y) an assignment of Loans (but for the avoidance of doubt, not any Commitments) to any Approved Fund unless, in the cases of clauses (x) and (y), such assignment would result in the aggregate Loans and Commitments of such assignee and its Affiliates exceeding 15% of the aggregate Commitments and Loans 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 Commitment or Loan, as applicable, 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 AcceptanceAssumption, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAssumption. 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 Acceptancerequisite 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 Assignment and Assumption), and, except for rights and obligations which by their terms survive termination of any Commitments and/or Advancesor the repayment of the Loans, the assigning Lender shall be released from its any further obligations under this AgreementAgreement 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 Lenderevidence 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 LenderRegister.
(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 AssigneeAssumption, 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, Commitments, Extensions of Credit or any other interest of such Lender hereunder and under this Agreementthe 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 extends the Certain Funds Termination Date or the Maturity Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch 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 Lenderssuch participant (except as otherwise provided in Section 10.07(b)), 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, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon meaning of the occurrence and during the continuance of any Event of Default, each Lender Code shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests include in its rights under this Agreement and participation agreement with such Person a covenant by such Person that such Person will comply with 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.Section
Appears in 1 contract
Sources: 364 Day Bridge Credit Agreement