Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C. (b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement. (c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents other than any amendment, modification or waiver with respect to any Loan or Commitment in which such Participant has an interest which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor. (d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender. (e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 3 contracts
Sources: Credit Agreement (M I Homes Inc), Credit Agreement (M I Homes Inc), Credit Agreement (M I Homes Inc)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with grant participations (to be evidenced by one or more agreements or certificates of participation) in the Loans made and Reimbursement Obligations and/or Revolving Credit Commitment and/or participations in Swing Loans held by such Lender at any time and from time to time to one or more Persons (other than a natural Person or any Borrower or Guarantor or any Affiliates or Subsidiaries of any Borrower or any Guarantor) (each, a “Participant”); provided that no such participation shall relieve any Lender and Borrower with respect to of any matter that is the subject of its obligations under this Agreement, and Lenders and Borrower agree to deal directly with provided further that no such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of participant shall have any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or except as provided in this Section 14.10, and the Notes are due and unpaid, or Administrative Agent shall have no obligation or responsibility to such participant. Any party to which such a participation has been declared or granted shall have become due the benefits of Section 3.6 and payable upon Section 11.3 hereof but shall not be entitled to receive any greater payment under either such Section than the occurrence of a Default or an Event of Default, each Participant shall be deemed Lender granting such participation would have been entitled to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall receive with respect to its Participants, if any, the rights transferred. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to approveenforce the obligations of the Borrowers hereunder including, without limitation, the consent of right to approve any Participant, any amendment, amendment or modification or waiver of any provision of the Loan Documents other than this Agreement; provided that such participation agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of this Agreement that would (A) increase the Revolving Credit Commitment of such Lender if such increase would also increase the participant’s obligations, (B) forgive any amount of or postpone the date for payment of any principal of or interest on any Loan or Commitment Reimbursement Obligation or of any fee payable hereunder in which such Participant participant has an interest or (C) reduce the stated rate at which forgives principal, interest or fees (accrue or other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) amounts payable with respect hereunder in which such participant has an interest. The Borrowers authorize each Lender to disclose to any such Loan participant or Commitmentprospective participant under this Section 14.10 any financial or other information pertaining to the Borrowers, postpones any date fixed subject to Section 14.21 hereof. Each Lender that sells a participation shall, acting solely for any regularly scheduled payment this purpose as an agent of principal ofthe Borrowers, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that maintain a register on which it enters the name and address of each Participant shall be deemed to have and the rights principal amounts (and stated interest) of set-off provided in subsection 11.8 hereof in respect of its participating each Participant’s interest in amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 3 contracts
Sources: Multicurrency Credit Agreement, Multicurrency Credit Agreement (Gallagher Arthur J & Co), Credit Agreement (Gallagher Arthur J & Co)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 12.11, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principalsuch a participation has been granted shall have the benefits of Section 1.11, interest or fees Section 10.3, and Section 12.1 hereof (other than Agent’s feessubject to the requirements and limitations therein, including the requirements under Section 12.1(g) or reduces (it being understood that the interest rate or fees (other than Agent’s feesdocumentation required under Section 12.1(g) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed delivered to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such participant (A) agrees to be subject to the amount provisions of Section 12.1(g) as if it were an assignee under Section 12.12(a); and (B) shall not be entitled to receive any greater payment under Sections 10.3 or 12.1, with respect to any participation, than its participating interest were owing directly Lender would have been entitled to it as 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. The Borrower and each Guarantor authorizes each Lender to disclose to any participant or prospective participant under this Section 12.11 any financial or other information pertaining to each Guarantor, the Loan DocumentsBorrower or any Subsidiary, provided that each Lender such participant or prospective participant shall retain the right of set-off provided in subsection 11.8 hereof with respect be subject to the amount provisions of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a LenderSection 12.25.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 3 contracts
Sources: Credit Agreement (Investors Real Estate Trust), Credit Agreement (Investors Real Estate Trust), Credit Agreement (Investors Real Estate Trust)
Participants. (a) Any Lender Bank may, in without the ordinary course consent of its commercial banking business and in accordance with applicable lawthe Applicant, at any time the Administrative Agent or the Issuing Bank, sell participations to one or more Lenders banks or other financial institutions entities (a “ParticipantsParticipant”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment all or a portion of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower Bank’s rights and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement (including all or a portion of its Commitment and the LC Disbursements owing to the other parties to it); provided that (A) such Bank’s obligations under this Agreement shall remain unchanged, (B) such Lender Bank shall remain solely responsible to the other parties hereto for the performance thereof, of such obligations and such Lender shall remain (C) the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, BorrowerApplicant, the Administrative Agent, the Issuing Bank and the other Lenders, and Agent Banks shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one Any agreement or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries instrument pursuant to this Agreement or which has been delivered to a Bank sells such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with a participation shall provide that such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant Bank shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, 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 Bank will not, without the Loan Documents other than consent of the Participant, agree to any amendment, modification or waiver with respect described in Section 8.9(i) that affects such Participant. Subject to any Loan or Commitment in which such Participant has an interest which forgives principalparagraph (c)(ii) of this Section, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower Applicant agrees that each Participant shall be deemed entitled to have the rights benefits of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents Sections 8.1 and 9.15 to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the amount extent permitted by law, each Participant also shall be entitled to the benefits of its participating interest Section 8.2 as though it were owing directly to it as a Lender under the Loan DocumentsBank, provided that each Lender such Participant agrees to be subject to Section 2.5(b) as though it were a Bank.
(b) A Participant shall retain not be entitled to receive any greater payment under Section 8.1 or 8.15 than the right of set-off provided in subsection 11.8 hereof applicable Bank would have been entitled to receive with respect to the amount of participating interests participation sold to each Participant. Lenders agree to share with each such Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for unless the sale of participating interests the participation to such Participant is made with the Applicant’s prior written consent. A Participant that would be a Non-U.S. Bank if it were a Bank shall not be entitled to the benefits of Section 8.15 unless the Applicant is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Applicant, to comply with Section 8.15 as described in though it were a Bank. Each Bank that sells a participation shall, acting solely for this subsection 11.4 purpose as an agent of the Applicant, maintain a register on which it enters the name and address of each Participant and the assignments as described principal amounts (and stated interest) of each Participant’s interest in subsection 11.7 hereof, no Lender may sell or assign its rights and interests the Obligations under this Agreement without (the written consent “Participant Register”). 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 each Lender and Borrower, provided that after such participation for all purposes of this Agreement notwithstanding any notice to the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be requiredcontrary.
Appears in 3 contracts
Sources: Reimbursement Agreement (South Jersey Industries Inc), Reimbursement Agreement (South Jersey Industries Inc), Reimbursement Agreement (South Jersey Industries Inc)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, may at any time time, without the consent of, or notice to, Borrower or Administrative Agent, sell participations to one any Person (other than a natural Person, or more Lenders a holding company, investment vehicle or other financial institutions trust for, or owned and operated for the primary benefit of, a natural Person, or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a “ParticipantsParticipant”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment all or a portion of such Lender, ’s rights and/or obligations under this Agreement (including all or any other interest a portion of such Lender hereunderits Commitment and/or the Loans owing to it); provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (ci) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, (iii) Borrower, Administrative Agent, the other Lenders, L/C Issuers and Agent Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. HoweverFor the avoidance of doubt, any Participant that is an affiliate of any each Lender shall have be responsible for the right to deal directly with any other Lender and Borrower indemnity under Section 9.6 with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree payments made by such Lender to deal directly with such affiliate its Participant(s); provided, however, that each Lender needs . Any agreement or instrument pursuant to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or sells such a participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to shall provide that such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, 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 Loan Documents other than consent of the Participant, agree to any amendment, modification or waiver with respect to any Loan or Commitment described in which the proviso of Section 11.11 that affects such Participant has an interest which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower Participant. ▇▇▇▇▇▇▇▇ agrees that each Participant shall be deemed entitled to have the rights benefits of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under Sections 3.1 through 3.4 and 3.6 (subject to the Loan Documents requirements and limitations therein) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant Section 11.10; provided that such Participant (A) agrees to be subject to the amount provisions of Section 2.15 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 3.1, 3.2 or 3.6, with respect to any participation, than its participating interest 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. Each Lender that sells a participation agrees, at ▇▇▇▇▇▇▇▇’s request and expense, to use reasonable efforts to cooperate with Borrower to effectuate the provisions of Section 2.15 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.14 as though it were owing directly a Lender; provided that such Participant agrees to be subject to Section 11.5 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a Lender non-fiduciary agent of ▇▇▇▇▇▇▇▇, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any Participant or any information relating to a Participant’s interest in subsection 11.8 hereof with respect any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the amount extent that such disclosure is necessary to establish that such commitment, loan, letter of participating interests sold to each Participantcredit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, such participation for all purposes of this Agreement notwithstanding any amount received pursuant notice to the exercise contrary. For the avoidance of doubt, Administrative Agent (in its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 3 contracts
Sources: Credit Agreement (AlTi Global, Inc.), Credit Agreement (AlTi Global, Inc.), Senior Secured Credit Facility (Alvarium Tiedemann Holdings, Inc.)
Participants. Each Bank shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Bank at any time sell and from time to time, to one or more Lenders or other banks, insurance companies, commercial lenders and other financial institutions (“Participants”) participating interests in institutions; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale Bank of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by its obligations under this Agreement, and provided further that no participation agreement such assignee or participant shall provide have any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations rights under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 13.11, and the Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any party to which such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender a participation has been granted shall have the right benefits of Section 2.4 and Section 10.3 hereof but shall not be entitled to deal directly with receive any other Lender and Borrower greater payment under either such Section than the Bank granting such participation would have been entitled to receive with respect to the rights transferred. Any agreement pursuant to which any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with Bank may grant such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in shall provide that such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant Bank shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower hereunder including, without limitation, the consent of right to approve any Participant, any amendment, amendment or modification or waiver of any provision of the Loan Documents other than Documents; provided that such participation agreement may provide that such Bank will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would (A) increase any Commitment of such Bank if such increase would also increase the participant’s obligations, (B) forgive any amount of or postpone the date for payment of any principal of or interest on any Loan or Commitment of any fee payable hereunder in which such Participant participant has an interest or (C) reduce the stated rate at which forgives principal, interest or fees (accrue or other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) amounts payable with respect hereunder in which such participant has an interest. The Borrower and each Guarantor authorizes each Bank to disclose to any such Loan participant or Commitment, postpones prospective participant under this Section 13.11 any date fixed for any regularly scheduled payment of principal of, financial or interest other information pertaining to the Borrower or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor, subject to Section 13.20 hereof.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 2 contracts
Sources: Credit Agreement (Federal Signal Corp /De/), Credit Agreement (Federal Signal Corp /De/)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with grant participations (to be evidenced by one or more agreements or certificates of participation) in the Loans made and Reimbursement Obligations and/or Revolving Credit Commitment and/or participations in Swing Loans held by such Lender at any time and from time to time to one or more Persons (other than a natural Person or any Borrower or Guarantor or any Affiliates or Subsidiaries of any Borrower or any Guarantor) (each, a “Participant”); provided that no such participation shall relieve any Lender and Borrower with respect to of any matter that is the subject of its obligations under this Agreement, and Lenders and Borrower agree to deal directly with provided further that no such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of participant shall have any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or except as provided in this Section 14.10, and the Notes are due and unpaid, or Administrative Agent shall have no obligation or responsibility to such participant. Any party to which such a participation has been declared or granted shall have become due the benefits of Section 3.6 and payable upon Section 11.3 hereof but shall not be entitled to receive any greater payment under either such Section than the occurrence of a Default or an Event of Default, each Participant shall be deemed Lender granting such participation would have been entitled to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall receive with respect to its Participants, if any, the rights transferred. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to approveenforce the obligations of the Borrowers hereunder including, without limitation, the consent of right to approve any Participant, any amendment, amendment or modification or waiver of any provision of the Loan Documents other than this Agreement; provided that such participation agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of this Agreement that would (A) increase the Revolving Credit Commitment of such Lender if such increase would also increase the participant’s obligations, (B) forgive any amount of or postpone the date for payment of any principal of or interest on any Loan or Commitment Reimbursement Obligation or of any fee payable hereunder in which such Participant participant has an interest or (C) reduce the stated rate at which forgives principal, interest or fees (accrue or other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) amounts payable with respect hereunder in which such participant has an interest. The Borrowers authorize each Lender to disclose to any such Loan participant or Commitmentprospective participant under this Section 14.10 any financial or other information pertaining to the Borrowers, postpones any date fixed subject to Section 14.21 hereof. Each Lender that sells a participation shall, acting solely for any regularly scheduled payment this purpose as a non-fiduciary agent of principal ofthe Borrowers, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that maintain a register on which it enters the name and address of each Participant shall be deemed to have and the rights principal amounts (and stated interest) of set-off provided in subsection 11.8 hereof in respect of its participating each Participant’s interest in amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 2 contracts
Sources: Credit Agreement (Arthur J. Gallagher & Co.), Multicurrency Credit Agreement (Gallagher Arthur J & Co)
Participants. Each Bank shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Bank at any time sell and from time to time to one or more Lenders or other financial institutions Persons (each a “ParticipantsParticipant”) participating interests in ); provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale Bank of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one no obligation or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered responsibility to such Lender or Agent by Borrower or Borrower’s Subsidiaries participant. Any agreement pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant participation is granted shall be subject to provide (a) that the confidentiality provisions of this Agreement.
(c) Each Lender granting Bank shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Company under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Bank will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan fixed date for payment of any indebtedness, obligation or Commitment liability in which such Participant participant has an interest which forgives principal, interest or fees and (other than Agent’s feesb) or reduces that the interest rate or fees (other than Agent’s fees) payable with respect participant agrees to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment be bound by Section 11.18 of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents this Agreement to the same extent as if it were a Bank. Any party to which such a participation has been granted shall have the amount benefits of its participating Section 9.3 and Section 9.4 hereof. The Company authorizes each Bank to disclose to any participant or prospective participant under this Section, if such person has agreed in writing to be bound by Section 11.18 below to the same extent as if it were a Bank, any financial or other information pertaining to the Company or any Subsidiary. Each Bank that sells a participation shall acting solely for this purpose as an agent of the Company 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 were owing directly to it as a Lender in the Loans or other obligations under the Loan Documents, Documents (the “Participant Register”); provided that each Lender no Bank shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any Participant or any information relating to a Participant’s interest in subsection 11.8 hereof with respect any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the amount extent that such disclosure is necessary to establish that such commitment, loan, letter of participating interests sold to each Participantcredit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, such participation for all purposes of this Agreement notwithstanding any amount received pursuant notice to the exercise contrary. For the avoidance of doubt, the Agent (in its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 2 contracts
Sources: Credit Agreement (Sanderson Farms Inc), Credit Agreement (Sanderson Farms Inc)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, Loans made and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approve, without the consent of any Participant, approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided in subsection 11.8 hereof in respect Section 1.12, Section 10.3 and Section 13.1 (subject to the obligations and limitations of its participating interest in amounts owing under such Sections (and the Loan Documents compliance of such participant therewith as if it were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.12) (it being understood that the amount of its participating interest were owing directly documentation required under Section 13.1(e) shall be delivered to it the Lender who sells the participation). Each Lender that sells a participation shall, acting solely for this purpose as a Lender 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 the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any participant or any information relating to a participant’s interest in subsection 11.8 hereof with respect any commitments, loans or its other obligations under any Loan Document) to any Person except to the amount 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 participating interests sold to each Participantthe United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, such participation for all purposes of this Agreement notwithstanding any amount received pursuant notice to the exercise contrary. For the avoidance of doubt, the Administrative Agent (in its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (J M SMUCKER Co), Bridge Term Loan Credit Agreement (J M SMUCKER Co)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and participations in accordance with applicable law, L/C Obligations and Swing Loans and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders other Persons (other than a natural Person, or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person, a Defaulting Lender, the Borrower or any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lenderthe Borrower’s Affiliates or Subsidiaries, or a Disqualified Institutions (but only to the extent that the list of Disqualified Institutions has been made available to all Lenders), a “Participant”); provided that no such participation shall relieve any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further, that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 13.11, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveexercise rights under this Agreement and the other Loan Documents and to enforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver of the Loan Documents that would reduce the amount of or postpone any fixed date for payment of any Obligation in which such participant has an interest which requires the consent of each affected Lender pursuant to clause (i) or (ii) of the first proviso of Section 13.13(a) (subject to the other provisions of Section 13.13 including clause (b) thereof). Subject to Section 13.25 hereof, the Borrower authorizes each Lender to disclose to any participant or prospective participant (which, for the avoidance of doubt, shall exclude any Disqualified Institution (but only to the extent that the list of Disqualified Institutions has been made available to all Lenders)) under this Section 13.11 any financial or other information pertaining to Holdings, any of its Restricted Subsidiaries or Unrestricted Subsidiaries. Any party which has been granted a participation shall be entitled to the benefits of Section 1.12, Section 10.3 and Section 13.4 hereof only to the extent of the benefits accruing to the Lender granting the participation if such participant is not an Affiliate or Related Fund of a Lender. Each Participant shall be entitled to the benefits of Section 13.1 hereof as if it were a Lender; provided, however, for the avoidance of doubt, the Borrower shall not, at any time, be obligated to pay additional amounts pursuant to Section 13.1(a) with respect to any Loan or Commitment in which withholding tax that is imposed on amounts payable to such Participant has an interest at the time it acquires a participation in the Loans or Commitments made under this Agreement, except to the extent that such Participant is the Participant of a Lender who was entitled to receive such additional amounts from the Borrower. Each Lender that sells a participation shall maintain a register on which forgives principal, interest or fees (other than Agentit records the name and address of each participant and the principal amounts of each participant’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount Loans, Commitments or other interests hereunder, which entries shall be conclusive absent manifest error. In the event a participation is granted to a Person who does not satisfy the eligibility requirements of participating interests sold this Section 13.11, the Borrower shall be entitled to each Participant. Lenders agree pursue any remedy available to share with each Participantit (whether at law or in equity, including specific performance to unwind such participation) against the Lender selling the participation and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lenderparticipant.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 2 contracts
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.), Credit Agreement (Dave & Buster's Entertainment, Inc.)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and participations in accordance with applicable law, L/C Obligations and Swing Loans and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders other Persons (other than a natural Person, or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person, a Defaulting Lender, the Borrower or any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lenderthe Borrower’s Affiliates or Subsidiaries, or a Disqualified Institutions (but only to the extent that the list of Disqualified Institutions has been made available to all Lenders), a “Participant”); provided that no such participation shall relieve any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further, that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 13.11, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveexercise rights under this Agreement and the other Loan Documents and to enforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver of the Loan Documents that would reduce the amount of or postpone any fixed date for payment of any Obligation in which such participant has an interest which requires the consent of each affected Lender pursuant to clause (i) or (ii) of the first proviso of Section 13.13(a) (subject to the other provisions of Section 13.13 including clause (b) thereof). Subject to Section 13.25 hereof, the Borrower authorizes each Lender to disclose to any participant or prospective participant (which, for the avoidance of doubt, shall exclude any Disqualified Institution (but only to the extent that the list of Disqualified Institutions has been made available to all Lenders)) under this Section 13.11 any financial or other information pertaining to Holdings, any of its Restricted Subsidiaries or Unrestricted Subsidiaries. Any party which has been granted a participation shall be entitled to the benefits of Section 1.12, Section 10.3 and Section 13.4 hereof only to the extent of the benefits accruing to the Lender granting the participation if such participant is not an Affiliate or Related Fund of a Lender. Each Participant shall be entitled to the benefits of Section 13.1 hereof as if it were a Lender; provided, however, for the avoidance of doubt, the Borrower shall not, at any time, be obligated to pay additional amounts pursuant to Section 13.1(a) with respect to any Loan or Commitment in which withholding tax that is imposed on amounts payable to such Participant has an interest at the time it acquires a participation in the Loans or Commitments made under this Agreement, except to the extent that such Participant is the Participant of a Lender who was entitled to receive such additional amounts from the Borrower. Each Lender that sells a participation shall maintain a register on which forgives principal, interest or fees (other than Agentit records the name and address of each participant and the principal amounts of each participant’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount Loans, Commitments or other interests hereunder to ensure such Loans, Commitments and other interests are in registered form under Section 5f.103-1(c), which entries shall be conclusive absent manifest error. In the event a participation is granted to a Person who does not satisfy the eligibility requirements of participating interests sold this Section 13.11, the Borrower shall be entitled to each Participant. Lenders agree pursue any remedy available to share with each Participantit (whether at law or in equity, including specific performance to unwind such participation) against the Lender selling the participation and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lenderparticipant.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 2 contracts
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.), Credit Agreement (Dave & Buster's Entertainment, Inc.)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with any other Lender and Borrower with respect grant participations (to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any be evidenced by one or more Lenders is required. The rights set forth agreements or certificates of participation) in the immediately preceding sentence Loans made and/or Commitments held by such Lender at any time and from time to time to one or more other Persons; provided that (a) no such participation shall apply only to Participants that are affiliates relieve any Lender of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender obligations under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to no such participant shall have any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to rights under this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries except as provided in connection with such Lender’s or Agent’s credit evaluation of Borrower this Section 13.11, and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each the Administrative Agent shall have no obligation or responsibility to such participant. Any agreement pursuant to which such participation is granted shall provide that the granting Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided in subsection 11.8 hereof in respect Section 1.12, Section 10.4 and Section 13.1 (subject to the obligations and limitations of its participating interest in amounts owing under such Sections (and the Loan Documents compliance of such participant therewith as if it were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.12) (it being understood that the amount of its participating interest were owing directly documentation required under Section 13.1(e) shall be delivered to it the Lender who sells the participation). Each Lender that sells a participation shall, acting solely for this purpose as a Lender 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 the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any participant or any information relating to a participant’s interest in subsection 11.8 hereof with respect any commitments, loans or its other obligations under any Loan Document) to any Person except to the amount 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 participating interests sold to each Participantthe United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, such participation for all purposes of this Agreement notwithstanding any amount received pursuant notice to the exercise contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding anything to the contrary in this Section 13.11, no such participation shall be made to the Borrower or any of its right of set-offAffiliates or Subsidiaries, such amounts to a natural person, or a Defaulting Lender or a Person that would be shared in accordance with subsection 11.8 hereof as a Defaulting Lender if each Participant it were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (J M SMUCKER Co)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lenderother than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, or the Borrower or any other interest of the Borrower’s Affiliates or Subsidiaries); provided that no such participation shall relieve any Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 12.11, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principalsuch a participation has been granted shall have the benefits of Section 1.11, interest or fees Section 10.3, and Section 12.1 hereof (other than Agent’s feessubject to the requirements and limitations therein, including the requirements under Section 12.1(g) or reduces (it being understood that the interest rate or fees (other than Agent’s feesdocumentation required under Section 12.1(g) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed delivered to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such participant (A) agrees to be subject to the amount provisions of Section 12.1(g) as if it were an assignee under Section 12.12(a); and (B) shall not be entitled to receive any greater payment under Sections 10.3 or 12.1, with respect to any participation, than its participating interest were owing directly Lender would have been entitled to it as 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. The Borrower and each Guarantor authorizes each Lender to disclose to any participant or prospective participant under this Section 12.11 any financial or other information pertaining to each Guarantor, the Loan DocumentsBorrower or any Subsidiary, provided that each Lender such participant or prospective participant shall retain the right of set-off provided in subsection 11.8 hereof with respect be subject to the amount provisions of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a LenderSection 12.25.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 2 contracts
Sources: Second Amendment to Third Amended and Restated Credit Agreement (Centerspace), Credit Agreement (Centerspace)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, may at any time time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to one any Person (other than a natural Person, or more Lenders a holding company, investment vehicle or other financial institutions trust for, or owned and operated for the primary benefit of, a natural Person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ParticipantsParticipant”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment all or a portion of such Lender, ’s rights and/or obligations under this Agreement (including all or any other interest a portion of such Lender hereunderits Commitment and/or the Loans owing to it); provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (ci) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations, and such Lender shall remain (iii) the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, Administrative Agent and Agent Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, and (iv) no participation shall be sold to a Defaulting Lender, any Participant that is an affiliate natural person or any Disqualified Lender. For the avoidance of any doubt, each Lender shall have be responsible for the right to deal directly with any other Lender and Borrower indemnity under Section 10.6 with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree payments made by such Lender to deal directly with such affiliate its Participant(s); provided, however, that each Lender needs . Any agreement or instrument pursuant to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or sells such a participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to shall provide that such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, 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 Loan Documents other than consent of the Participant, agree to any amendment, modification or waiver described in the proviso of Section 12.13 that affects such Participant. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 1.11 with respect to any Loan or Commitment in which Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.16 as though it were a Lender; provided that such Participant has an interest agrees to be subject to Section 12.7 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which forgives principal, interest or fees (other than Agent’s fees) or reduces it enters the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment name and address of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have and the rights principal amounts (and stated interest) of set-off provided in subsection 11.8 hereof in respect of its participating each Participant’s interest in amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 2 contracts
Sources: Credit Agreement (StoneX Group Inc.), Credit Agreement (StoneX Group Inc.)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons (“Participants”) participating interests in other than the Parent, the Borrower and their Subsidiaries); provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 13.12, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approve, without enforce the consent obligations of any Participant, the Borrowers under this Agreement and the other Loan Documents including the right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided in subsection 11.8 Section 1.12 and Section 10.3 hereof in respect of its participating interest in amounts owing under the Loan Documents (but to the same extent as if the amount of Lender from which it purchases its participating interest were owing directly participation is entitled to it such benefits). Each Lender that sells a participation shall, acting solely for this purpose as a Lender non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any participant or any information relating to a participant's interest in subsection 11.8 hereof with respect any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the amount extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of participating interests sold to each ParticipantCredit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, such participation for all purposes of this Agreement notwithstanding any amount received pursuant notice to the exercise contrary. For the avoidance of doubt, the Administrative Agent (in its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 2 contracts
Sources: Amendment Agreement (Boulder Brands, Inc.), Credit Agreement (Boulder Brands, Inc.)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, may at any time time, without the consent of, or notice to, the Borrowers, the Issuing Banks, the Swingline Lender, the Administrative Agent or the Sustainability Structuring Agents, sell participations to one any Person (other than a natural Person (or more Lenders holding company, investment vehicle or other financial institutions trust for, or owned and operated for the primary benefit of, a natural person) or the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries) (each, a “ParticipantsParticipant”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment all or a portion of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s 's rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to the other parties to it); provided that (i) such Lender's obligations under this Agreement shall remain unchangedunchanged and such Lender shall not be relieved of its obligations under the Credit Documents as a result of such participation, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations, and (iii) such Lender shall remain the holder of any such Note for all purposes under of this Agreement, and, except as provided in and (iv) the immediately following sentence, BorrowerBorrowers, the Administrative Agent, the Issuing Banks and the other Lenders, and Agent Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s ▇▇▇▇▇▇'s rights and obligations under this Agreement. HoweverFor the avoidance of doubt, any Participant that is an affiliate of any each Lender shall have be responsible for the right to deal directly with any other Lender and Borrower indemnity under Section 10.26.3 with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to payments made by such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, . Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to approve, without the consent of any Participant, 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 Loan Documents other than consent of the Participant, agree to any amendment, waiver or other modification or waiver with respect to any Loan or Commitment in which such Participant has an interest which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 Section 10.3.2 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided Section 10.3.3 that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to affects such sale or assignment shall not be requiredParticipant.
Appears in 2 contracts
Sources: Credit Agreement (Protective Life Insurance Co), Credit Agreement (Protective Life Insurance Co)
Participants. (a) Any Lender Bank may, in without the ordinary course consent of its commercial banking business and in accordance with applicable lawthe Applicant, at any time the Administrative Agent or the Issuing Bank, sell participations to one or more Lenders banks or other financial institutions entities (a “ParticipantsParticipant”) participating interests ), other than an Ineligible Institution, in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment all or a portion of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower Bank’s rights and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement (including all or a portion of its Commitment and the LC Disbursements owing to the other parties to it); provided that (i) such 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 thereof, of such obligations and such Lender shall remain (iii) the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, BorrowerApplicant, the Administrative Agent, the Issuing Bank and the other Lenders, and Agent Banks shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one Any agreement or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries instrument pursuant to this Agreement or which has been delivered to a Bank sells such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with a participation shall provide that such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant Bank shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, 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 Bank will not, without the Loan Documents other than consent of the Participant, agree to any amendment, modification or waiver with respect described in Section 8.9(i) that affects such Participant. Subject to any Loan or Commitment in which such Participant has an interest which forgives principalSection 8.6(b), interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower Applicant agrees that each Participant shall be deemed entitled to have the rights benefits of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under Sections 8.1 and 8.15 (subject to the Loan Documents requirements and limitations therein) to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to Section 8.7. To the amount extent permitted by law, each Participant also shall be entitled to the benefits of its participating interest Section 8.2 as though it were owing directly to it as a Lender under the Loan DocumentsBank, provided that each Lender such Participant agrees to be subject to Section 2.5(b) as though it were a Bank.
(b) Notwithstanding anything to the contrary in this Agreement, a Participant shall retain not be entitled to receive any greater payment under Section 8.1 or 8.15 than the right of set-off provided in subsection 11.8 hereof applicable Bank would have been entitled to receive with respect to the amount of participating interests participation sold to each Participant. Lenders agree to share with each such Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for unless the sale of participating interests the participation to such Participant is made with the Applicant’s prior written consent. A Participant that would be a Non-U.S. Bank if it were a Bank shall not be entitled to the benefits of Section 8.15 unless the Applicant is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Applicant, to comply with Section 8.15 as described in though it were a Bank. Each Bank that sells a participation shall, acting solely for this subsection 11.4 purpose as an agent of the Applicant, maintain a register on which it enters the name and address of each Participant and the assignments as described principal amounts (and stated interest) of each Participant’s interest in subsection 11.7 hereof, no Lender may sell or assign its rights and interests the Obligations under this Agreement without (the written consent “Participant Register”). 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 each Lender and Borrower, provided that after such participation for all purposes of this Agreement notwithstanding any notice to the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be requiredcontrary.
Appears in 2 contracts
Sources: Reimbursement Agreement (South Jersey Industries Inc), Reimbursement Agreement (South Jersey Industries Inc)
Participants. (a) Any Lender Bank may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders banks or other financial institutions (“"Participants”") participating interests in any Revolving Credit Loan owing to such LenderBank, any Note held by such LenderBank, any interest (including any Reimbursement Obligation) in any Facility Standby L/C with respect to such LenderBank, any Revolving Credit Loan Commitment of such LenderBank, or any other interest of such Lender Bank hereunder; provided, however, that upon the sale of any participating interest the selling Lender Bank shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s 's consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender Bank of participating interests to a Participant, such Lender’s Bank's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender Bank shall remain solely responsible for the performance thereof, and such Lender Bank shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other LendersBanks, and Agent 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. However, any Participant that is an affiliate of any Lender Bank shall have the right to deal directly with any other Lender Bank and Borrower with respect to any matter that is the subject of this Agreement, and Lenders Banks and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender Bank needs to deal only with other Lenders Banks (and not such other Lenders’ Banks' affiliate Participant(s)), in those matters in which the consent of any one or more Lenders Banks is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any LenderBank, and such rights do not apply to any Participants that are not affiliates of any LenderBank. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders Banks in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender Bank under this Agreement, any Note or any Facility Standby L/C or participation in any Facility Standby L/C.
(b) Borrower authorizes each Lender Bank and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s Bank's or Agent’s 's possession concerning Borrower and any of Borrower’s 's Subsidiaries which has been delivered to such Lender Bank or Agent by Borrower or Borrower’s 's Subsidiaries pursuant to this Agreement or which has been delivered to such Lender Bank or Agent by Borrower or Borrower’s 's Subsidiaries in connection with such Lender’s Bank's or Agent’s 's credit evaluation of Borrower and Borrower’s 's Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents other than any amendment, modification or waiver with respect to any Loan or Commitment in which such Participant has an interest which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender Bank may sell or assign its rights and interests under this Agreement without the written consent of each Lender Bank and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all LendersBanks, Borrower’s 's consent to such sale or assignment shall not be required.
Appears in 2 contracts
Sources: Revolving Credit Loan Agreement (M I Schottenstein Homes Inc), Fifth Restated Revolving Credit Loan, Swingline Loan and Standby Letter of Credit Agreement (M I Schottenstein Homes Inc)
Participants. (a) Any In addition to the other rights provided in this Section 14.2 each Lender may, in without notice to or consent from the ordinary course of its commercial banking business and in accordance with applicable lawAgent or Borrower, at any time sell participations to one or more Lenders Persons in or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment all or a portion of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s its rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender Loan Documents (including all its rights and Borrower obligations with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(sAdvances); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s))that, in those matters in which the consent whether as a result of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates term of any LenderLoan Document or of such participation, and (i) no such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaidparticipant shall have a commitment, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have made an offer to commit, to make Advances hereunder, and none shall be liable for any obligation of such Lender hereunder and such Lender shall remain liable for the right making of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreementall Advances hereunder, any Note or any Facility L/C or participation in any Facility L/C.
(bii) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower rights and obligations, and the rights and obligations of the Loan Parties and the Secured Parties towards such Lender, under any of Borrower’s Subsidiaries which has been delivered Loan Document shall remain unchanged and each other party hereto shall continue to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection deal solely with such Lender’s or Agent’s credit evaluation , which shall remain the holder of Borrower the Obligations in the Register, except that each such participant shall be entitled to the benefit of Section 16, but, with respect to Section 16.1, only to the extent such participant delivers the Tax forms required pursuant to Section 16.1(f) (it being understood that the documentation required thereunder shall be delivered to the participating Lender) and Borrower’s Subsidiaries prior then only to entering into this Agreement. Any Participant or prospective Participant the extent of any amount to which such Lender would be entitled in the absence of any such participation, provided, however, that in no case shall a participant have the right to enforce any of the terms of any Loan Document, (iii) each such participant shall be subject to the confidentiality provisions of this Agreement.
Section 14.3 and Section 16.1(e) as if it were an assignee under Section 14.2(b) and (civ) Each Lender the consent of such participant shall not be required (either directly, as a restraint on such Lender’s ability to consent hereunder or otherwise) for any amendments, waivers or consents with respect to its Participants, if any, retain any Loan Document or to exercise or refrain from exercising any powers or rights such Lender may have under or in respect of the sole Loan Documents (including the right to approveenforce or direct enforcement of the Obligations), except that the agreement pursuant to which the Lender sells such participation may provide that such Lender will not, without the consent of such participant, agree to any Participantamendments, any amendment, modification waivers or waiver consents described in clauses (ii) and (iii) of any provision of the Loan Documents other than any amendment, modification or waiver Section 15.1 (with respect to any Loan amounts, or Commitment in dates fixed for payment of amounts, to which such Participant has an interest which forgives principal, interest or fees (other than Agent’s feesparticipant would otherwise be entitled) or reduces those described in clause (vii) of Section 15.1(a). 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 interest rate or fees name and address of each participant and the principal amounts (other than Agentand stated interest) of each participant’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing the Advances or other obligations under the Loan Documents (the “Participant Register”); provided, that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any such Advance, Subsequent Advance Commitment or obligations under any Loan Document) to any Person other than the Agent except to the same extent as if that such disclosure is necessary to establish that such Advance or obligation is in registered form under Section 5f.l03-l(c) of the amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as the Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding anything else to the contrary provided in subsection 11.8 hereof herein, no Lender shall be permitted to sell participations with respect to Advances to a Disqualified Person. Each Lender shall be entitled to rely conclusively on a representation of the amount participant in the applicable participation agreement that such participant is not a Disqualified Person, provided, that such reliance by such Lender is in good faith and reasonable under the circumstances existing at the time of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lenderparticipation.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 2 contracts
Sources: Credit and Security Agreement (SAExploration Holdings, Inc.), Credit and Security Agreement (SAExploration Holdings, Inc.)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, Loans made and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons; provided that (“Participants”a) participating interests in no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that(b) no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 13.11, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each the Administrative Agent shall have no obligation or responsibility to such participant. Any agreement pursuant to which such participation is granted shall provide that the granting Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent right to approve any Table of any Participant, any Contents amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided in subsection 11.8 hereof in respect Section 1.12, Section 10.3 and Section 13.1 (subject to the obligations and limitations of its participating interest in amounts owing under such Sections (and the Loan Documents compliance of such participant therewith as if it were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.12) (it being understood that the amount of its participating interest were owing directly documentation required under Section 13.1(e) shall be delivered to it the Lender who sells the participation). Each Lender that sells a participation shall, acting solely for this purpose as a Lender 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 the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any participant or any information relating to a participant’s interest in subsection 11.8 hereof with respect any commitments, loans or its other obligations under any Loan Document) to any Person except to the amount 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 participating interests sold to each Participantthe United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, such participation for all purposes of this Agreement notwithstanding any amount received pursuant notice to the exercise contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding anything to the contrary in this Section 13.11, no such participation shall be made to the Borrower or any of its right of set-offAffiliates or Subsidiaries, such amounts to a natural person, or a Defaulting Lender or a Person that would be shared in accordance with subsection 11.8 hereof as a Defaulting Lender if each Participant it were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (J M SMUCKER Co)
Participants. Each Bank shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made, and/or Revolving Credit Commitment and participations in accordance with applicable lawL/Cs, Bond L/Cs, Bond Reimbursement Obligations and Reimbursement Obligations held, by such Bank at any time sell and from time to time, and to assign its rights under such Loans, participations in L/Cs, Bond L/Cs, Bond Reimbursement Obligations and Reimbursement Obligations or the Notes evidencing such Loans to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale Bank of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by its obligations under this Agreement, and no any agreement pursuant to which such participation agreement or assignment of a Note or the rights thereunder is granted shall provide any Participant with such rights. In that the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such granting Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrowers under the Loan Documents, including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision thereof, except that such agreement may provide that such Bank will not agree without the consent of the Loan Documents other than such participant or assignee to any amendmentmodification, modification amendment or waiver with respect of this Agreement that would (A) increase any Revolving Credit Commitment of such Bank, or (B) reduce the amount of or postpone the date for payment of any principal of or interest on any Loan, Bond Reimbursement Obligation or Reimbursement Obligation or of any fee payable hereunder in which such participant or assignee has an interest or (C) reduce the interest rate applicable to any Loan or Commitment other amount payable in which such Participant participant or assignee has an interest which forgives principal, interest or fees (other than Agent’s feesD) release any collateral security for or reduces the interest rate or fees guarantor (other than Agent’s feesif any) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal ofthe Borrowers’ indebtedness, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender obligations and liabilities under the Loan Documents, and provided further that each Lender no such assignee or participant shall retain the right of set-off have any rights under this Agreement except as provided in subsection 11.8 this Section 11.15, and the Agent shall have no obligation or responsibility to such participant or assignee, except that nothing herein provided is intended to affect the rights of an assignee of a Note to enforce the Note assigned. Any party to which such a participation or assignment has been granted shall have the benefits of Section 1.10, Section 9.3 and Section 9.4 hereof but shall not be entitled to receive any greater payment under any such Section than the Bank granting such participation or assignment would have been entitled to receive with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lenderrights transferred.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Participants. (a) Any Each Lender may, shall have the right at its own cost to grant participations (to be evidenced by one or more agreements or certificates of participation) in the ordinary course portion of its commercial banking business and in accordance with applicable law, the Loan made and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one no obligation or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered responsibility to such Lender or Agent by Borrower or Borrower’s Subsidiaries participant. Any agreement pursuant to this Agreement or which has been delivered to such participation is granted shall provide that the Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with granting such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant participation shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principalsuch a participation has been granted shall have the benefits of Section 2.3.8 and Section 2.3.6 (subject to the requirements and limitations therein, interest or fees including the requirements under subsections (other than Agent’s feese), (f) or reduces and (g) of Section 2.3.6 (it being understood that the interest rate or fees documentation required under subsections (other than Agent’s feese), (f) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment and (g) of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant Section 2.3.6 shall be deemed delivered to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents Lender)) to the same extent as if the amount of its participating interest it were owing directly to it as a Lender under the Loan Documents, and had acquired its interest by assignment pursuant to Section 9.2; provided that each Lender such Participant (A) agrees to be subject to the provisions of Section 2.5 as if it were an assignee under Section 9.2; and (B) shall retain the right of set-off provided in subsection 11.8 hereof not be entitled to receive any greater payment under Section 2.3.8 or Section 2.3.6, with respect to the amount of any participation, than its participating interests sold Lender would have been entitled to each Participant. Lenders agree to share with each Participantreceive, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant except to the exercise of its right of set-off, extent such amounts entitlement to be shared receive a greater payment results from a change in accordance with subsection 11.8 hereof as if each law that occurs after the Participant were a Lenderacquired the applicable participation.
(eb) Except Each Lender that sells a participation shall, acting solely for this purpose as an agent of ▇▇▇▇▇▇▇▇, maintain a register on which it enters the sale name and address of participating interests as described in this subsection 11.4 each Participant and the assignments as described principal amounts (and stated interest) of each Participant’s interest in subsection 11.7 hereof, the Loans or other obligations under any Loan Document (the “Participant Register”); provided that no Lender may sell shall have any obligation to disclose all or assign its rights any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such 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 interests under 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 without notwithstanding any notice to the written consent contrary. For the avoidance of each Lender and Borrowerdoubt, provided that after the occurrence of Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be requiredParticipant Register.
Appears in 1 contract
Sources: Loan Agreement (IPC Alternative Real Estate Income Trust, Inc.)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with grant participations (to be evidenced by one or more agreements or certificates of participation) in the Loans made and Reimbursement Obligations and/or Revolving Credit Commitment and/or participations in Swing Loans held by such Lender at any time and from time to time to one or more other banks, insurance companies, commercial lenders and other financial institutions; provided that no such participation shall relieve any Lender and Borrower with respect to of any matter that is the subject of its obligations under this Agreement, and Lenders and Borrower agree to deal directly with provided further that no such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of participant shall have any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or except as provided in this Section 14.11, and the Notes are due and unpaid, or Administrative Agent shall have no obligation or responsibility to such participant. Any party to which such a participation has been declared or granted shall have become due the benefits of Section 3.6 and payable upon Section 11.3 hereof but shall not be entitled to receive any greater payment under either such Section than the occurrence of a Default or an Event of Default, each Participant shall be deemed Lender granting such participation would have been entitled to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall receive with respect to its Participants, if any, the rights transferred. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to approveenforce the obligations of the Borrowers hereunder including, without limitation, the consent of right to approve any Participant, any amendment, amendment or modification or waiver of any provision of the Loan Documents other than this Agreement; provided that such participation agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of this Agreement that would (A) increase the Revolving Credit Commitment of such Lender if such increase would also increase the participant’s obligations, (B) forgive any amount of or postpone the date for payment of any principal of or interest on any Loan or Commitment Reimbursement Obligation or of any fee payable hereunder in which such Participant participant has an interest or (C) reduce the stated rate at which forgives principal, interest or fees (accrue or other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) amounts payable with respect hereunder in which such participant has an interest. The Borrowers authorize each Lender to disclose to any such Loan participant or Commitment, postpones prospective participant under this Section 14.11 any date fixed for any regularly scheduled payment of principal of, financial or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents information pertaining to the same extent as if the amount of its participating interest were owing directly Borrowers, subject to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 Section 14.21 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Gallagher Arthur J & Co)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, may at any time time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to one any Person (other than a natural Person, or more Lenders a holding company, investment vehicle or other financial institutions trust for, or owned and operated for the primary benefit of, a natural Person, any Excluded Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ParticipantsParticipant”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment all or a portion of such Lender, ’s rights and/or obligations under this Agreement (including all or any other interest a portion of such Lender hereunderits Commitment and/or the Loans owing to it); provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (ci) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations, and such Lender shall remain (iii) the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other LendersAdministrative Agent, the L/C Issuer and Agent Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. HoweverFor the avoidance of doubt, any Participant that is an affiliate of any each Lender shall have be responsible for the right to deal directly with any other Lender and Borrower indemnity under Section 9.6 with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree payments made by such Lender to deal directly with such affiliate its Participant(s); provided, however, that each Lender needs . Any agreement or instrument pursuant to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or sells such a participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to shall provide that such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, 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 Loan Documents other than consent of the Participant, agree to any amendment, modification or waiver with respect to any Loan or Commitment described in which the proviso of Section 10.11 that affects such Participant has an interest which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Participant. The Borrower agrees that each Participant shall be deemed entitled to have the rights benefits of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under Sections 3.1 through 3.4 and 3.6 (subject to the Loan Documents requirements and limitations therein) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant Section 10.10; provided that such Participant (A) agrees to be subject to the amount provisions of Section 2.16 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 3.1, 3.2 or 3.6, with respect to any participation, than its participating interest 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. Each Lender that sells a participation agrees, at the Borrower's request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.16 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.14 as though it were owing directly a Lender; provided that such Participant agrees to be subject to Section 10.5 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a Lender non-fiduciary agent of the #100931212v25 Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any Participant or any information relating to a Participant's interest in subsection 11.8 hereof with respect any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the amount extent that such disclosure is necessary to establish that such commitment, loan, letter of participating interests sold to each Participantcredit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, such participation for all purposes of this Agreement notwithstanding any amount received pursuant notice to the exercise contrary. For the avoidance of doubt, the Administrative Agent (in its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Participants. Each Bank shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made, and/or Revolving Credit Commitment and participations in accordance with applicable lawL/Cs and Reimbursement Obligations held, by such Bank at any time sell and from time to time, and to assign its rights under such Loans, participations in L/Cs and Reimbursement Obligations or the Notes evidencing such Loans to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale Bank of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by its obligations under this Agreement, and no any agreement pursuant to which such participation agreement or assignment of a Note or the rights thereunder is granted shall provide any Participant with such rights. In that the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such granting Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Company under the Loan Documents, including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision thereof, except that such agreement may provide that such Bank will not agree without the consent of the Loan Documents other than such participant or assignee to any amendmentmodification, modification amendment or waiver with respect of this Agreement that would (A) increase any Revolving Credit Commitment of such Lender, or (B) reduce the amount of or postpone the date for payment of any principal of or interest on any Loan or Reimbursement Obligation or of any fee payable hereunder in which such participant or assignee has an interest or (C) reduce the interest rate applicable to any Loan or Commitment other amount payable in which such Participant participant or assignee has an interest which forgives principal, interest or fees (other than Agent’s feesD) release any collateral security for or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed guarantor for any regularly scheduled payment of principal ofthe Company's indebtedness, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender obligations and liabilities under the Loan Documents, and provided further that each Lender no such assignee or participant shall retain the right of set-off have any rights under this Agreement except as provided in subsection 11.8 this Section 11.15, and the Agent shall have no obligation or responsibility to such participant or assignee, except that nothing herein provided is intended to affect the rights of an assignee of a Note to enforce the Note assigned. Any party to which such a participation or assignment has been granted shall have the benefits of Section 1.10, Section 9.3 and Section 9.4 hereof but shall not be entitled to receive any greater payment under any such Section than the Bank granting such participation or assignment would have been entitled to receive with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lenderrights transferred.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with any other Lender and Borrower with respect grant participations (to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any be evidenced by one or more Lenders is required. The rights set forth agreements or certificates of participation) in the immediately preceding sentence Loans made and/or Commitments held by such Lender at any time and from time to time to one or more other Persons; provided that (a) no such participation shall apply only to Participants that are affiliates relieve any Lender of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender obligations under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to no such participant shall have any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to rights under this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries except as provided in connection with such Lender’s or Agent’s credit evaluation of Borrower this Section 13.11, and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each the Administrative Agent shall have no obligation or responsibility to such participant. Any agreement pursuant to which such participation is granted shall provide that the granting Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest (subject to the proviso in Section 13.13(i)). Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided Section 1.12, Section 10.3 and Section 13.1 hereof and to the extent permitted by law, Section 13.16 hereof (subject to the terms of Section 13.7 hereof) (in subsection 11.8 hereof in respect each case, subject to obligations and limitations of its participating interest in amounts owing under such Sections (and the Loan Documents compliance of such participant therewith as if it were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.12 hereof) (it being understood that the amount of its participating interest were owing directly documentation required under Section 13.1(e) hereof shall be delivered to it the Lender who sells the participation). Each Lender that sells a participation shall, acting solely for this purpose as a Lender 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 the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any participant or any information relating to a participant’s interest in subsection 11.8 hereof with respect any commitments, loans or its other obligations under any Loan Document) to any Person except to the amount 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 participating interests sold to each Participantthe United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, such participation for all purposes of this Agreement notwithstanding any amount received pursuant notice to the exercise contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding anything to the contrary in this Section 13.11, no such participation shall be made to the Borrower or any of its right Affiliates or Subsidiaries, a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of set-offone or more natural persons), such amounts to or a Defaulting Lender or a Person that would be shared in accordance with subsection 11.8 hereof as a Defaulting Lender if each Participant it were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principalsuch a participation has been granted shall have the benefits of Section 8.1 and Section 8.4 hereof; provided, interest or fees (other than Agent’s fees) or reduces however, that Borrower shall pay no amounts under such sections in excess of the interest rate or fees (other than Agent’s fees) payable with respect amounts Borrower would have paid absent such participation. The Borrower authorizes each Lender to disclose to any participant or prospective participant under this Section any financial or other information pertaining to the Borrower or any Subsidiary; provided, however, that such Loan participant or Commitment, postpones prospective participant agrees in writing to be bound by Section 10.24 hereof. Each Lender that grants any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that participation hereunder shall cause each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest participants that is not a United States person (as such term is defined in amounts owing under Section 7701(a)(30) of the Loan Documents Code) to the same extent as if the amount of its participating interest were owing directly to it as comply with those Lender requirements set forth in Section 10.1(b) hereof. Any Lender that grants a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received participation pursuant to this Section shall promptly provide the exercise Borrower written notice of its right of set-offsuch participation, such amounts including the party to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lenderwhom the participation is granted.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (American Pharmaceutical Partners Inc /De/)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders Eligible Assignees, subject to the consent of the Borrower (such consent not to be unreasonably withheld or other financial institutions delayed) unless (“Participants”x) participating interests in any Revolving Credit Loan owing an Event of Default has occurred and is continuing at the time of such participation or (y) such participation is to such a Lender, an Affiliate of a Lender or an Approved Fund; provided that no such participation shall relieve any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces such a participation has been granted shall have the interest rate or fees (other than Agent’s fees) payable with respect benefits of Section 1.11 and Section 10.3 hereof. The Borrower authorizes each Lender to disclose to any participant or prospective participant under this Section any financial or other information pertaining to the Borrower or any Subsidiary thereof, provided that such Loan participant or Commitment, postpones prospective participant shall have agreed in writing prior to its receipt of such information to maintain all such information confidential and not to disclose such information to any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, Person except any such Loan information (a) that has become generally available to the public, (b) if required or Commitment appropriate in any report, statement or releases testimony submitted to any Guarantor.
regulatory body having or claiming to have jurisdiction over such Lender, (c) if required or appropriate in response to any summons or subpoena or in connection with any litigation or (d) Borrower agrees that each Participant shall be deemed in order to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents comply with any law, order, regulation or ruling applicable to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (Penford Corp)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with any other Lender and Borrower with respect grant participations (to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any be evidenced by one or more Lenders is required. The rights set forth agreements or certificates of participation) in the immediately preceding sentence Loans made and/or Commitments held by such Lender at any time and from time to time to one or more other Persons; provided that (a) no such participation shall apply only to Participants that are affiliates relieve any Lender of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender obligations under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to no such participant shall have any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to rights under this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries except as provided in connection with such Lender’s or Agent’s credit evaluation of Borrower this Section 13.11, and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each the Administrative Agent shall have no obligation or responsibility to such participant. Any agreement pursuant to which such participation is granted shall provide that the granting Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided in subsection 11.8 Section 1.12, Section 10.3 and Section 13.1 hereof in respect (subject to the obligations and limitations of its participating interest in amounts owing under such Sections (and the Loan Documents compliance of such participant therewith as if it were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.12 hereof) (it being understood that the amount of its participating interest were owing directly documentation required under Section 13.1(e) hereof shall be delivered to it the Lender who sells the participation). Each Lender that sells a participation shall, acting solely for this purpose as a Lender 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 the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any participant or any information relating to a participant’s interest in subsection 11.8 hereof with respect any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding anything to the contrary in this Section 13.11, no such participation shall be made to the Borrower or any of their Affiliates or Subsidiaries, a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural persons), or a Defaulting Lender or a Person that would be a Defaulting Lender if it were a Lender. Notwithstanding the preceding paragraph, following the Closing Date, any Farm Credit Lender that (i) has purchased a participation from any Lender that is a Farm Credit Lender in the minimum amount of participating interests sold $5,000,000.00 on or after the Closing Date, (ii) is, by written notice to each the Borrower and the Administrative Agent (a “Voting Participant Notification”), designated by the selling Lender as being entitled to be accorded the rights of a voting participant hereunder (any Farm Credit Lender so designated being called a “Voting Participant. Lenders agree ”) and (iii) receives the prior written consent of the Borrower and the Administrative Agent to share with each become a Voting Participant, shall be entitled to vote (and each Participantthe voting rights of the selling Lender shall be correspondingly reduced), by exercising the right of seton a dollar-off provided in subsection 11.8 hereoffor-dollar basis, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each such Voting Participant were a Lender.
(e) Except for , on any matter requiring or allowing a Lender to provide or withhold its consent, or to otherwise vote on any proposed action, in each case, in lieu of the sale vote of participating interests the selling Lender; provided, however, that if such Voting Participant has at any time failed to fund any portion of its participation when required to do so and notice of such failure has been delivered by the selling Lender to the Administrative Agent, then until such time as described in all amounts of its participation required to have been funded have been funded and notice of such funding has been delivered by the selling Lender to the Administrative Agent, such Voting Participant shall not be entitled to exercise its voting rights pursuant to the terms of this subsection 11.4 paragraph, and the assignments voting rights of the selling Lender shall not be correspondingly reduced by the amount of such Voting Participant’s participation. Notwithstanding the foregoing, each Farm Credit Lender designated as described in subsection 11.7 hereof, no Lender may sell or assign its rights a Voting Participant on Schedule 13.11 shall be a Voting Participant without delivery of a Voting Participant Notification and interests under this Agreement without the prior written consent of the Borrower and the Administrative Agent. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (A) state the full name of such Voting Participant, as well as all contact information required of an assignee, (B) state the dollar amount of the participation purchased, and (C) include such other information as may be required by the Administrative Agent. The selling Lender and Borrowerthe Voting Participant shall notify the Administrative Agent and the Borrower within three Business Days of any termination of, or reduction or increase in the amount of, such participation and shall promptly upon request of the Administrative Agent update or confirm there has been no change in the information set forth in Schedule 13.11 or delivered in connection with any Voting Participant Notification. The Borrower and the Administrative Agent shall be entitled to conclusively rely on information provided by a Lender identifying itself or its participant as a Farm Credit Lender without verification thereof and may also conclusively rely on the information set forth in Schedule 13.11 delivered in connection with any Voting Participant Notification or otherwise furnished pursuant to this paragraph and, unless and until notified thereof in writing by the selling Lender, may assume that after there have been no changes in the occurrence identity of Voting Participants, the dollar amount of participations, the contact information of the participants or any other information furnished to the Borrower or the Administrative Agent pursuant to this paragraph. The voting rights hereunder are solely for the benefit of the Voting Participants and shall not inure to any assignee or participant of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be requiredVoting Participant.
Appears in 1 contract
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons (“Participants”) participating interests in any Revolving Credit Loan owing to such Lenderother than a natural Person, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, the Borrower or any other interest Guarantor or any Affiliate or Subsidiary of the Borrower or any Guarantor); provided that no such participation shall relieve any Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of setSection 1.9 and Section 10.2 hereof; provided that such participant agrees to be subject to Section 13.1 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-off provided in subsection 11.8 hereof in respect fiduciary agent of its participating 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 amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register 107 748271253 as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (StoneX Group Inc.)
Participants. (a) Any Lender Bank may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders banks or other financial institutions (“Participants”"PARTICIPANTS") participating interests in any Revolving Credit Loan owing to such LenderBank, any Note held by such LenderBank, any interest (including any Reimbursement Obligation) in any Facility Standby L/C with respect to such LenderBank, any Revolving Credit Loan Commitment of such LenderBank, or any other interest of such Lender Bank hereunder; provided, however, that upon the sale of any participating interest the selling Lender Bank shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s 's consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender Bank of participating interests to a Participant, such Lender’s Bank's -76- 82 obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender Bank shall remain solely responsible for the performance thereof, and such Lender Bank shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other LendersBanks, and Agent 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. However, any Participant that is an affiliate of any Lender Bank shall have the right to deal directly with any other Lender Bank and Borrower with respect to any matter that is the subject of this Agreement, and Lenders Banks and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender Bank needs to deal only with other Lenders Banks (and not such other Lenders’ Banks' affiliate Participant(s)), in those matters in which the consent of any one or more Lenders Banks is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any LenderBank, and such rights do not apply to any Participants that are not affiliates of any LenderBank. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders Banks in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender Bank under this Agreement, any Note or any Facility Standby L/C or participation in any Facility Standby L/C.
(b) Borrower authorizes each Lender Bank and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s Bank's or Agent’s 's possession concerning Borrower and any of Borrower’s 's Subsidiaries which has been delivered to such Lender Bank or Agent by Borrower or Borrower’s 's Subsidiaries pursuant to this Agreement or which has been delivered to such Lender Bank or Agent by Borrower or Borrower’s 's Subsidiaries in connection with such Lender’s Bank's or Agent’s 's credit evaluation of Borrower and Borrower’s 's Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents other than any amendment, modification or waiver with respect to any Loan or Commitment in which such Participant has an interest which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender Bank may sell or assign its rights and interests under this Agreement without the written consent of each Lender Bank and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all LendersBanks, Borrower’s 's consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Revolving Credit Loan Agreement (M I Schottenstein Homes Inc)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons without the consent of the Borrower; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. 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 forgives principal, interest or fees (other than Agent’s fees) or reduces it enters the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment name and address of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have and the rights principal amounts (and stated interest) of set-off provided in subsection 11.8 hereof in respect of its participating each Participant’s interest in amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lendercontrary.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders Eligible Assignees, subject to the consent of the Borrower (such consent not to be unreasonably withheld or other financial institutions delayed) unless (“Participants”x) participating interests in any Revolving Credit Loan owing an Event of Default has occurred and is continuing at the time of such participation or (y) such participation is to such a Lender, an Affiliate of a Lender or an Approved Fund; provided that no such participation shall relieve any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principalsuch a participation has been granted shall have the benefits of Section 1.11, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect Section 10.3 and Section 13.1 hereof. The Borrower authorizes each Lender to disclose to any participant or prospective participant under this Section any financial or other information pertaining to the Borrower or any Subsidiary thereof, provided that such Loan participant or Commitment, postpones prospective participant shall have agreed in writing prior to its receipt of such information to maintain all such information confidential and not to disclose such information to any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, Person except any such Loan information (a) that has become generally available to the public, (b) if required or Commitment appropriate in any report, statement or releases testimony submitted to any Guarantor.
regulatory body having or claiming to have jurisdiction over such Lender, (c) if required or appropriate in response to any summons or subpoena or in connection with any litigation or (d) Borrower agrees in order to comply with any law, order, regulation or ruling applicable to such Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant shall be deemed to have participant and the rights principal amounts (and stated interest) of set-off provided in subsection 11.8 hereof in respect of its participating each participant’s interest in amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (Penford Corp)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with any other Lender and Borrower with respect grant participations (to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any be evidenced by one or more Lenders is required. The rights set forth agreements or certificates of participation) in the immediately preceding sentence Loans made and Reimbursement Obligations and/or Revolving Credit Commitments held by such Lender at any time and from time to time to one or more other Persons; provided that (a) no such participation shall apply only to Participants that are affiliates relieve any Lender of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender obligations under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to no such participant shall have any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to rights under this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries except as provided in connection with such Lender’s or Agent’s credit evaluation of Borrower this Section 13.11, and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each the Administrative Agent shall have no obligation or responsibility to such participant. Any agreement pursuant to which such participation is granted shall provide that the granting Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of each Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided in subsection 11.8 Section 1.12, Section 10.3 and Section 13.1 hereof in respect (subject to the obligations and limitations of its participating interest in amounts owing under such Sections (and the Loan Documents compliance of such participant therewith as if it were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.12 hereof) (it being understood that the amount of its participating interest were owing directly documentation required under Section 13.1(e) hereof shall be delivered to it the Lender who sells the participation). Each Lender that sells a participation shall, acting solely for this purpose as a Lender non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any participant or any information relating to a participant’s interest in subsection 11.8 hereof with respect any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding anything to the contrary in this Section 13.11, no such participation shall be made to any Borrower or any of their Affiliates or Subsidiaries, a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural persons), or a Defaulting Lender or a Person that would be a Defaulting Lender if it were a Lender. Notwithstanding the preceding paragraph, any Farm Credit Lender that (i) has purchased a participation from any Lender that is a Farm Credit Lender in the minimum amount of participating interests sold $5,000,000.00 on or after the Closing Date, (ii) is, by written notice to each the U.S. Borrower and the Administrative Agent (a “Voting Participant Notification”), designated by the selling Lender as being entitled to be accorded the rights of a voting participant hereunder (any Farm Credit Lender so designated being called a “Voting Participant. Lenders agree ”) and (iii) receives the prior written consent of the U.S. Borrower and the Administrative Agent to share with each become a Voting Participant, shall be entitled to vote (and each Participantthe voting rights of the selling Lender shall be correspondingly reduced), by exercising the right of set-off provided in subsection 11.8 hereofon a dollar for dollar basis, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each such Voting Participant were a Lender.
(e) Except for , on any matter requiring or allowing a Lender to provide or withhold its consent, or to otherwise vote on any proposed action, in each case, in lieu of the sale vote of participating interests the selling Lender; provided, however, that if such Voting Participant has at any time failed to fund any portion of its participation when required to do so and notice of such failure has been delivered by the selling Lender to the Administrative Agent, then until such time as described in all amounts of its participation required to have been funded have been funded and notice of such funding has been delivered by the selling Lender to the Administrative Agent, such Voting Participant shall not be entitled to exercise its voting rights pursuant to the terms of this subsection 11.4 paragraph, and the assignments voting rights of the selling Lender shall not be correspondingly reduced by the amount of such Voting Participant’s participation. Notwithstanding the foregoing, each Farm Credit Lender designated as described in subsection 11.7 hereof, no Lender may sell or assign its rights a Voting Participant on Schedule 13.11 shall be a Voting Participant without delivery of a Voting Participant Notification and interests under this Agreement without the prior written consent of the Company and the Administrative Agent. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (A) state the full name of such Voting Participant, as well as all contact information required of an assignee, (B) state the dollar amount of the participation purchased, and (C) include such other information as may be required by the Administrative Agent. The selling Lender and Borrowerthe Voting Participant shall notify the Administrative Agent and the U.S. Borrower within three Business Days of any termination of, or reduction or increase in the amount of, such participation and shall promptly upon request of the Administrative Agent update or confirm there has been no change in the information set forth in Schedule 13.11 or delivered in connection with any Voting Participant Notification. Each Borrower and the Administrative Agent shall be entitled to conclusively rely on information provided by a Lender identifying itself or its participant as a Farm Credit Lender without verification thereof and may also conclusively rely on the information set forth in Schedule 13.11 delivered in connection with any Voting Participant Notification or otherwise furnished pursuant to this paragraph and, unless and until notified thereof in writing by the selling Lender, may assume that after there have been no changes in the occurrence identity of Voting Participants, the dollar amount of participations, the contact information of the participants or any other information furnished to any Borrower or the Administrative Agent pursuant to this paragraph. The voting rights hereunder are solely for the benefit of the Voting Participants and shall not inure to any assignee or participant of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be requiredVoting Participant.
Appears in 1 contract
Participants. Each Bank shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made, and/or Revolving Credit Commitment and participations in accordance with applicable lawL/Cs, Bond L/Cs, Bond Reimbursement Obligations and Reimbursement Obligations held, by such Bank at any time sell and from time to time, and to assign its rights under such Loans, participations in L/Cs, Bond L/Cs, Bond Reimbursement Obligations and Reimbursement Obligations or the Notes evidencing such Loans to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale Bank of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by its obligations under this Agreement, and no any agreement pursuant to which such participation agreement or assignment of a Note or the rights thereunder is granted shall provide any Participant with such rights. In that the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such granting Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Company under the Loan Documents, including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision thereof, except that such agreement may provide that such Bank will not agree without the consent of the Loan Documents other than such participant or assignee to any amendmentmodification, modification amendment or waiver with respect of this Agreement that would (A) increase any Revolving Credit Commitment of such Lender, or (B) reduce the amount of or postpone the date for payment of any principal of or interest on any Loan, Bond Reimbursement Obligation or Reimbursement Obligation or of any fee payable hereunder in which such participant or assignee has an interest or (C) reduce the interest rate applicable to any Loan or Commitment other amount payable in which such Participant participant or assignee has an interest which forgives principal, interest or fees (other than Agent’s feesD) release any collateral security for or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed guarantor for any regularly scheduled payment of principal ofthe Company's indebtedness, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender obligations and liabilities under the Loan Documents, and provided further that each Lender no such assignee or participant shall retain the right of set-off have any rights under this Agreement except as provided in subsection 11.8 this Section 11.15, and the Agent shall have no obligation or responsibility to such participant or assignee, except that nothing herein provided is intended to affect the rights of an assignee of a Note to enforce the Note assigned. Any party to which such a participation or assignment has been granted shall have the benefits of Section 1.10, Section 9.3 and Section 9.4 hereof but shall not be entitled to receive any greater payment under any such Section than the Bank granting such participation or assignment would have been entitled to receive with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lenderrights transferred.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, may at any time time, without the consent of, or notice to, Borrower or the Administrative Agent, sell participations to one any Person (other than a Defaulting Lender, a natural Person, or more Lenders a holding company, investment vehicle or other financial institutions trust for, or owned and operated for the primary benefit of, a natural Person, or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a “ParticipantsParticipant”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment all or a portion of such Lender, ’s rights and/or obligations under this Agreement (including all or any other interest a portion of such Lender hereunderits Commitment and/or the Revolving Loans owing to it); provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (ci) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, (iii) Borrower, the other LendersAdministrative Agent, the L/C Issuer and Agent Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. HoweverFor the avoidance of doubt, any Participant that is an affiliate of any each Lender shall have be responsible for the right to deal directly with any other Lender and Borrower indemnity under Section 9.6 with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree payments made by such Lender to deal directly with such affiliate its Participant(s); provided, however, that each Lender needs . Any agreement or instrument pursuant to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or sells such a participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to shall provide that such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, 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 Loan Documents other than consent of the Participant, agree to any amendment, modification or waiver with respect to any Loan or Commitment described in which the proviso of Section 11.11 that affects such Participant has an interest which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Participant. Borrower agrees that each Participant shall be deemed entitled to have the rights benefits of set-off Sections 3.1 through 3.4 and 3.6 (subject to the requirements and limitations therein) to the same extent 739016937 20664705 as if it were a Lender and had acquired its interest by assignment pursuant Section 11.10; provided in subsection 11.8 hereof in that such Participant (A) agrees to be subject to the provisions of Section 2.14 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 3.1, 3.2 or 3.6, with respect of to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at Borrower’s request and expense, to use reasonable efforts to cooperate with Borrower to effectuate the provisions of Section 2.14 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.14 as though it were a Lender; provided that such Participant agrees to be subject to Section 11.5 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in amounts owing the Revolving Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, Revolving Loans, letters of credit or its other obligations under any Loan Document) to any Person except to the same extent as if that such disclosure is necessary to establish that such commitment, Revolving Loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (AssetMark Financial Holdings, Inc.)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lenderother than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, or the Borrower or any other interest of the Borrower’s Affiliates or Subsidiaries); provided that no such participation shall relieve any Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 12.11, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principalsuch a participation has been granted shall have the benefits of Section 1.11, interest or fees Section 10.3, and Section 12.1 hereof (other than Agent’s feessubject to the requirements and limitations therein, including the requirements under Section 12.1(g) or reduces (it being understood that the interest rate or fees (other than Agent’s feesdocumentation required under Section 12.1(g) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed delivered to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such participant (A) agrees to be subject to the amount provisions of Section 12.1(g) as if it were an assignee under Section 12.12(a); and (B) shall not be entitled to receive any greater payment under Sections 10.3 or 12.1, with respect to any participation, than its participating interest were owing directly Lender would have been entitled to it as 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. The Borrower and each Guarantor authorizes each Lender to disclose to any participant or prospective participant under this Section 12.11 any financial or other information pertaining to each Guarantor, the Loan DocumentsBorrower or any Subsidiary, provided that each Lender such participant or prospective participant shall retain the right of set-off provided in subsection 11.8 hereof with respect be subject to the amount provisions of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a LenderSection 12.25.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Term Loan Agreement (Centerspace)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, Loans made and/or the Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approve, without enforce the consent obligations of any Participant, Borrower under this Agreement and the other Loan Documents including the right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principalsuch a participation has been granted shall have the benefits of Sections 3.1 and 3.2 (subject to the requirements and limitations therein, interest or fees (other than Agent’s feesincluding the requirements of Section 3.1(b), it being understood that the documentation required under Section 3.1(b) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed delivered to have the rights participating Lender), Section 3.4 and Section 3.6. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of set-off provided in subsection 11.8 hereof in respect Borrower, maintain a register on which it enters the name and address of its participating each participant and the principal amounts (and stated interest) of each participant’s interest in amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (BIO-TECHNE Corp)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with any other Lender and Borrower with respect grant participations (to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any be evidenced by one or more Lenders is required. The rights set forth agreements or certificates of participation) in the immediately preceding sentence Loans made and Reimbursement Obligations and/or Revolving Credit Commitments held by such Lender at any time and from time to time to one or more other Persons; provided that (a) no such participation shall apply only to Participants that are affiliates relieve any Lender of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender obligations under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to no such participant shall have any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to rights under this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries except as provided in connection with such Lender’s or Agent’s credit evaluation of Borrower this Section 13.11, and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each the Administrative Agent shall have no obligation or responsibility to such participant. Any agreement pursuant to which such participation is granted shall provide that the granting Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of each Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest (subject to the proviso in Section 13.13(i)). Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided Section 1.12, Section 10.3 and Section 13.1 hereof and to the extent permitted by law, Section 13.16 hereof (subject to the terms of Section 13.7 hereof) (in subsection 11.8 hereof in respect each case, subject to the obligations and limitations of its participating interest in amounts owing under such Sections (and the Loan Documents compliance of such participant therewith as if it were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.12 hereof) (it being understood that the amount of its participating interest were owing directly documentation required under Section 13.1(e) hereof shall be delivered to it the Lender who sells the participation). Each Lender that sells a participation shall, acting solely for this purpose as a Lender non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any participant or any information relating to a participant’s interest in subsection 11.8 hereof with respect any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding anything to the contrary in this Section 13.11, no such participation shall be made to any Borrower or any of their Affiliates or Subsidiaries, a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural persons), or a Defaulting Lender or a Person that would be a Defaulting Lender if it were a Lender. Notwithstanding the preceding paragraph, any Farm Credit Lender that (i) has purchased a participation from any Lender that is a Farm Credit Lender in the minimum amount of participating interests sold $5,000,000.00 on or after the Closing Date, (ii) is, by written notice to each the U.S. Borrower and the Administrative Agent (a “Voting Participant Notification”), designated by the selling Lender as being entitled to be accorded the rights of a voting participant hereunder (any Farm Credit Lender so designated being called a “Voting Participant. Lenders agree ”) and (iii) receives the prior written consent of the U.S. Borrower and the Administrative Agent to share with each become a Voting Participant, shall be entitled to vote (and each Participantthe voting rights of the selling Lender shall be correspondingly reduced), by exercising the right of set-off provided in subsection 11.8 hereofon a dollar for dollar basis, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each such Voting Participant were a Lender.
(e) Except for , on any matter requiring or allowing a Lender to provide or withhold its consent, or to otherwise vote on any proposed action, in each case, in lieu of the sale vote of participating interests the selling Lender; provided, however, that if such Voting Participant has at any time failed to fund any portion of its participation when required to do so and notice of such failure has been delivered by the selling Lender to the Administrative Agent, then until such time as described in all amounts of its participation required to have been funded have been funded and notice of such funding has been delivered by the selling Lender to the Administrative Agent, such Voting Participant shall not be entitled to exercise its voting rights pursuant to the terms of this subsection 11.4 paragraph, and the assignments voting rights of the selling Lender shall not be correspondingly reduced by the amount of such Voting Participant’s participation. Notwithstanding the foregoing, each Farm Credit Lender designated as described in subsection 11.7 hereof, no Lender may sell or assign its rights a Voting Participant on Schedule 13.11 shall be a Voting Participant without delivery of a Voting Participant Notification and interests under this Agreement without the prior written consent of the U.S. Borrower and the Administrative Agent. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (A) state the full name of such Voting Participant, as well as all contact information required of an assignee, (B) state the dollar amount of the participation purchased, and (C) include such other information as may be required by the Administrative Agent. The selling Lender and Borrowerthe Voting Participant shall notify the Administrative Agent and the U.S. Borrower within three Business Days of any termination of, or reduction or increase in the amount of, such participation and shall promptly upon request of the Administrative Agent update or confirm there has been no change in the information set forth in Schedule 13.11 or delivered in connection with any Voting Participant Notification. Each Borrower and the Administrative Agent shall be entitled to conclusively rely on information provided by a Lender identifying itself or its participant as a Farm Credit Lender without verification thereof and may also conclusively rely on the information set forth in Schedule 13.11 delivered in connection with any Voting Participant Notification or otherwise furnished pursuant to this paragraph and, unless and until notified thereof in writing by the selling Lender, may assume that after there have been no changes in the occurrence identity of Voting Participants, the dollar amount of participations, the contact information of the participants or any other information furnished to any Borrower or the Administrative Agent pursuant to this paragraph. The voting rights hereunder are solely for the benefit of the Voting Participants and shall not inure to any assignee or participant of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be requiredVoting Participant.
Appears in 1 contract
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with any other Lender and Borrower with respect grant participations (to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any be evidenced by one or more Lenders is required. The rights set forth agreements or certificates of participation) in the immediately preceding sentence Loans made and Reimbursement Obligations and/or Revolving Credit Commitments held by such Lender at any time and from time to time to one or more other Persons; provided that (a) no such participation shall apply only to Participants that are affiliates relieve any Lender of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender obligations under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to no such participant shall have any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to rights under this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries except as provided in connection with such Lender’s or Agent’s credit evaluation of Borrower this Section 13.11, and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each the Administrative Agent shall have no obligation or responsibility to such participant. Any agreement pursuant to which such participation is granted shall provide that the granting Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of each Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided in subsection 11.8 Section 1.12, Section 10.3 and Section 13.1 hereof in respect (subject to the obligations and limitations of its participating interest in amounts owing under such Sections (and the Loan Documents compliance of such participant therewith as if it were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.12 hereof) (it being understood that the amount of its participating interest were owing directly documentation required under Section 13.1(e) hereof shall be delivered to it the Lender who sells the participation). Each Lender that sells a participation shall, acting solely for this purpose as a Lender non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any participant or any information relating to a participant’s interest in subsection 11.8 hereof with respect any commitments, loans or its other obligations under any Loan Document) to any Person except to the amount 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 participating interests sold to each Participantthe United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, such participation for all purposes of this Agreement notwithstanding any amount received pursuant notice to the exercise contrary. For the avoidance of doubt, the Administrative Agent (in its right capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding anything to the contrary in this Section 13.11, no such participation shall be made to any Borrower or any of set-offtheir Affiliates or Subsidiaries, such amounts to a natural person, or a Defaulting Lender or a Person that would be shared in accordance with subsection 11.8 hereof as a Defaulting Lender if each Participant it were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Participants. Each Bank shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Term Loans made, and/or Term Credit Commitment and participations in accordance with applicable lawthe Bond L/C and Reimbursement Obligations held, by such Bank at any time sell and from time to time, and to assign its rights under such Term Loans, participations in the Bond L/C and Reimbursement Obligations or the Notes evidencing such Loans to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; PROVIDED that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale Bank of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by its obligations under this Agreement, and no any agreement pursuant to which such participation agreement or assignment of a Note or the rights thereunder is granted shall provide any Participant with such rights. In that the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement granting Bank shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Company under the Loan Documents, including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision thereof, except that such agreement may provide that such Bank will not agree without the consent of the Loan Documents other than such participant or assignee to any amendmentmodification, modification amendment or waiver with respect to of this Agreement that would (A) increase any Term Credit Commitment of such Lender, or (B) reduce the amount of or postpone the date for payment of any principal of or interest on any Term Loan or Commitment Reimbursement Obligation or of any fee payable hereunder in which such Participant participant or assignee has an interest, or (C) reduce the interest rate applicable to any Term Loan or other amount payable in which such participant or assignee has an interest which forgives principal, interest or fees (other than Agent’s feesD) release any collateral security for or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed guarantor for any regularly scheduled payment of principal ofthe Company's indebtedness, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender obligations and liabilities under the Loan Documents, and provided further that each Lender no such assignee or participant shall retain the right of set-off have any rights under this Agreement except as provided in subsection 11.8 this Section 11.15, and the Agent shall have no obligation or responsibility to such participant or assignee, except that nothing herein provided is intended to affect the rights of an assignee of a Note to enforce the Note assigned. Any party to which such a participation or assignment has been granted shall have the benefits of Section 1.10, Section 9.3 and Section 9.4 hereof but shall not be entitled to receive any greater payment under any such Section than the Bank granting such participation or assignment would have been entitled to receive with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lenderrights transferred.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Secured Term Credit Agreement (Pilgrims Pride Corp)
Participants. Each Bank shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made, and/or Revolving Credit Commitment and participations in accordance with applicable lawL/Cs, Bond L/Cs, Bond Reimbursement Obligations and Reimbursement Obligations held, by such Bank at any time sell and from time to time, and to assign its rights under such Loans, participations in L/Cs, Bond L/Cs, Bond Reimbursement Obligations and Reimbursement Obligations or the Notes evidencing such Loans to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale Bank of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by its obligations under this Agreement, and no any agreement pursuant to which such participation agreement or assignment of a Note or the rights thereunder is granted shall provide any Participant with such rights. In that the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such granting Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Company under the Loan Documents, including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision thereof, except that such agreement may provide that such Bank will not agree without the consent of the Loan Documents other than such participant or assignee to any amendmentmodification, modification amendment or waiver with respect of this Agreement that would (A) increase any Revolving Credit Commitment of such Lender, or (B) reduce the amount of or postpone the date for payment of any principal of or interest on any Loan, Bond Reimbursement Obligation or Reimbursement Obligation or of any fee payable hereunder in which such participant or assignee has an interest or (C) reduce the interest rate applicable to any Loan or Commitment other amount payable in which such Participant participant or assignee has an interest which forgives principal, interest or fees (other than Agent’s feesD) release any collateral security for or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed guarantor for any regularly scheduled payment of principal ofthe Company’s indebtedness, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender obligations and liabilities under the Loan Documents, and provided further that each Lender no such assignee or participant shall retain the right of set-off have any rights under this Agreement except as provided in subsection 11.8 this Section 11.15, and the Agent shall have no obligation or responsibility to such participant or assignee, except that nothing herein provided is intended to affect the rights of an assignee of a Note to enforce the Note assigned. Any party to which such a participation or assignment has been granted shall have the benefits of Section 1.10, Section 9.3 and Section 9.4 hereof but shall not be entitled to receive any greater payment under any such Section than the Bank granting such participation or assignment would have been entitled to receive with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lenderrights transferred.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with any other Lender and Borrower with respect grant participations to any matter that is the subject of this AgreementEligible Assignees (each, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants a “Participant”) that are not affiliates natural persons; provided that no such participation shall relieve any Lender of any Lender. Borrower agrees that if amounts outstanding of its obligations under this Agreement or the Notes are due and unpaidunder any Facility Loan Document or Collateral Documents and, or provided, further that no such Participant shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender rights under this Agreement, any Note Facility Loan Document or any Facility L/C Collateral Documents except as provided in this Section, and the Administrative Agent and Borrower shall have no obligation or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered responsibility to such Lender or Agent by Borrower or Borrower’s Subsidiaries Participant. Any agreement pursuant to this Agreement or which has been delivered to such participation is granted shall provide that the Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with granting such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant participation shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of Borrower under this Agreement, the Facility Loan Documents and Collateral Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the this Agreement, Facility Loan Documents other than and Collateral Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of this Agreement, the Facility Loan Documents or Collateral Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Program Debt in which such Participant participant has an interest interest. Any Participant to which forgives principal, interest or fees (other than Agent’s fees) or reduces such a participation has been granted in accordance with the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant terms hereof shall be deemed to have the rights benefits comparable to the funding indemnity and increased costs provisions set forth in Sections 2.3.6, 2.3.7, and 2.3.8 of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Facility Loan Documents Agreement form attached hereto as Exhibit B) to the same extent as if the amount of its participating interest it were owing directly to it as a Lender and had acquired its interest by assignment pursuant to Section 4.2 hereof; provided that such Participant shall not be entitled to receive any greater payment under the indemnification of each Facility Loan DocumentsDocument (which indemnification provisions are comparable to Sections 2.3.6, provided that each Lender shall retain 2.3.7, and 2.3.8 of the right of set-off provided in subsection 11.8 hereof Facility Loan Agreement form attached hereto as Exhibit B), with respect to the amount of any participation, than its participating interests sold Lender would have been entitled to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared receive.
(b) Each Lender that sells a participation in accordance with subsection 11.8 the terms hereof shall, acting solely for this purpose as if an agent of Borrower, maintain a register on which it enters the name and address of each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments principal amounts (and stated interest) of each Participant's interest in the Facility Loans or other obligations under any Facility Loan Document (the “Participant Register”). The Participant Register shall be available for inspection by Borrower. 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 described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under the owner of such participation for all purposes of this Agreement without and each Facility Loan Document notwithstanding any notice to the written consent contrary. For the avoidance of each Lender and Borrowerdoubt, provided that after the occurrence of Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be requiredParticipant Register.
Appears in 1 contract
Sources: Facility Loan Program Agreement and Security Agreement (Seven Hills Realty Trust)
Participants. (a) Any Following the Closing Date, each Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time may sell participations to one or more Lenders banks, financial institutions or other financial institutions Persons (“Participants”) participating interests in other than natural persons, Borrower or any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligationof Borrower’s Affiliates or Subsidiaries) in any Facility L/C with respect to such Lenderall or a portion of its rights and obligations under this Agreement without the consent of the Borrower, any Commitment of such Lender, the Administrative Agent or any other interest Person; provided that, the participant shall not become a Lender (but shall, pursuant to the terms of such Lender hereunder; provided, however, that upon the sale of any participating interest such participation, be obligated to comply with Section 13.30 hereof as if the selling Lender shall provide promptly to Borrower participant were a Lender) and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (ci) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement (including its Commitment) shall remain unchanged, (ii) such Lender shall remain solely responsible to the Borrower for the performance thereofof such obligations, and such Lender shall remain (iii) the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent Borrower shall continue to deal solely and directly with such Lender in connection with such Lender▇▇▇▇▇▇’s rights and obligations under this Agreement. However, (iv) no participant shall have any Participant that is an affiliate right to approve any amendment or waiver of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject provision of this Agreement, and Lenders and Borrower or any consent to any departure by any Person therefrom, except that such agreement may provide that such Lender will not agree to deal directly with any modification, amendment or waiver of the Credit Documents, without such affiliate Participant(s); provided, howeverparticipant’s consent, that each Lender needs would (a) increase the Commitments of such participant, (b) reduce the amount of or postpone any fixed date for payment of any Obligation in which such participant has an interest (provided that, no participant’s consent shall be required for the rescission of any default interest imposed pursuant to deal only Section 2.8), or (c) release all or substantially all of the Collateral or value of the Guarantees (except as otherwise provided for in the Credit Documents), and for the avoidance of doubt, no participant shall have any rights with other Lenders respect to waivers of defaults or Events of Default and (and not v) any participation shall be in a pro rata proportion of such other Lenders’ affiliate Participant(s)), in those matters in which rights and obligations with respect to all of the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, Loans and Commitments held by such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or Any party to which such a participation has been granted shall have the benefits of Section 2.10 and Section 11.3 hereof except that any amount paid to such party under either such section shall not exceed the amount that would have been declared or paid to such Lender in such circumstance. Any party to which such a participation has been granted shall have become due the benefits and payable upon requirements of Sections 13.1 through 13.10 (it being understood that the occurrence of a Default or an Event of Default, each Participant documentation required under Section 13.5 shall be deemed delivered to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation Lender) to the same extent as if the amount of it were a Lender and had acquired its interest by assignment pursuant to Section 13.18; provided that such party shall not be entitled to receive any greater payment under Sections 13.1 through 13.8 with respect to any participation than its participating interests were owing directly Lender would have been entitled to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) receive. The Borrower authorizes each Lender and Agent to disclose to any Participant and participant or prospective participant under this Section 13.17 any prospective Participant any and all financial or other information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered pertaining to such Lender or Agent by the Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be any Subsidiary, subject to the confidentiality provisions of this Agreement.
(c) Section 13.30 hereof. Each Lender shall with respect to its Participantsthat sells a participation shall, if any, retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision acting solely for this purpose as a “non-fiduciary” agent of the Loan Documents Borrower and each other than any amendmentObligor, modification or waiver with respect to any Loan or Commitment in maintain a register on which such Participant has an interest which forgives principal, interest or fees it enters the name and address of each participant and the principal amounts (other than Agentand stated interest) of each participant’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing the Loans or other obligations under the Loan Credit Documents to (the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, “Participant Register”); provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereofthat, no Lender may sell shall have any obligation to disclose all or assign 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 rights other obligations under any Credit 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 and interests under Section 1.163-5(b)(1) of the proposed 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 without notwithstanding any notice to the written consent contrary. For the avoidance of each Lender and Borrowerdoubt, provided that after the occurrence of Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be requiredParticipant Register.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Greenbacker Renewable Energy Co LLC)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, Loans made and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons (“Participants”) participating interests in other than natural persons); provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 13.10, and the Administrative Agent and the Collateral Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrowers under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principalsuch a participation has been granted shall have the benefits of Section 1.10 and Section 10.3 hereof; provided, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to that any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed limited to have the rights amount that would be payable to the Lender if there were no participation. Each Lender that sells a participation shall, acting solely for this purpose as an agent of set-off provided in subsection 11.8 hereof in respect the Borrowers, maintain a register on which it enters the name and address of its participating each participant and the principal amounts (and stated interest) of each participant’s interest in amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any Commitments, Loans, or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Participants. Each Bank shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable lawReimbursement Obligations and/or Revolving Credit Commitments (and, if relevant, Swing Line Commitment) held by such Bank at any time sell and from time to time to one or more Lenders other Persons which constitute financial institutions, insurance companies or other financial institutions (“Participants”) participating interests in commercial lenders; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale Bank of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 14.11, and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one no obligation or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered responsibility to such Lender or Agent by Borrower or Borrower’s Subsidiaries participant. Any agreement pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant participation is granted shall be subject to provide that the confidentiality provisions of this Agreement.
(c) Each Lender granting Bank shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower and Guarantors under this Agreement and the other Credit Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Credit Documents, except that such agreement may provide that such Bank will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Credit Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other such a participation has been granted shall have the benefits of Section 3.6 and Section 11.3 hereof; provided no participant shall be entitled to receive more under such Sections than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect Bank granting such participation would have received had the participation not been granted. The Borrower and each Guarantor authorizes each Bank to disclose to any such Loan participant or Commitment, postpones prospective participant under this Section 14.11 or to any date fixed for assignee or prospective assignee under Section 14.12 hereof any regularly scheduled payment of principal of, financial or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents information pertaining to the same extent as Borrower or any Guarantor if such Bank has obtained the amount written agreement of its participating interest were owing directly to it as a Lender under the Loan Documentssuch participant, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participantprospective participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts assignee or prospective assignee to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lenderbound by the provisions of Section 14.18 hereof.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (Clarcor Inc)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with any other Lender and Borrower with respect grant participations (to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any be evidenced by one or more Lenders is required. The rights set forth agreements or certificates of participation) in the immediately preceding sentence Loans made and Reimbursement Obligations and/or Revolving Credit Commitments held by such Lender at any time and from time to time to one or more other Persons; provided that (a) no such participation shall apply only to Participants that are affiliates relieve any Lender of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender obligations under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to no such participant shall have any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to rights under this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries except as provided in connection with such Lender’s or Agent’s credit evaluation of Borrower this Section 13.11, and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each the Administrative Agent shall have no obligation or responsibility to such participant. Any agreement pursuant to which such participation is granted shall provide that the granting Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of each Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided in subsection 11.8 Section 1.12, Section 10.3 and Section 13.1 hereof in respect (subject to the obligations and limitations of its participating interest in amounts owing under such Sections (and the Loan Documents compliance of such participant therewith as if it were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.12 hereof) (it being understood that the amount of its participating interest were owing directly documentation required under Section 13.1(e) hereof shall be delivered to it the Lender who sells the participation). Each Lender that sells a participation shall, acting solely for this purpose as a Lender non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any participant or any information relating to a participant’s interest in subsection 11.8 hereof with respect any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding anything to the contrary in this Section 13.11, no such participation shall be made to any Borrower or any of their Affiliates or Subsidiaries, a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural persons), or a Defaulting Lender or a Person that would be a Defaulting Lender if it were a Lender. Notwithstanding the preceding paragraph, any Farm Credit Lender that (i) has purchased a participation from any Lender that is a Farm Credit Lender in the minimum amount of participating interests sold $5,000,000.00 on or after the Closing Date, (ii) is, by written notice to each the U.S. Borrower and the Administrative Agent (a “Voting Participant Notification”), designated by the selling Lender as being entitled to be accorded the rights of a voting participant hereunder (any Farm Credit Lender so designated being called a “Voting Participant. Lenders agree ”) and (iii) receives the prior written consent of the U.S. Borrower and the Administrative Agent to share with each become a Voting Participant, shall 105 be entitled to vote (and each Participantthe voting rights of the selling Lender shall be correspondingly reduced), by exercising the right of set-off provided in subsection 11.8 hereofon a dollar for dollar basis, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each such Voting Participant were a Lender.
(e) Except for , on any matter requiring or allowing a Lender to provide or withhold its consent, or to otherwise vote on any proposed action, in each case, in lieu of the sale vote of participating interests the selling Lender; provided, however, that if such Voting Participant has at any time failed to fund any portion of its participation when required to do so and notice of such failure has been delivered by the selling Lender to the Administrative Agent, then until such time as described in all amounts of its participation required to have been funded have been funded and notice of such funding has been delivered by the selling Lender to the Administrative Agent, such Voting Participant shall not be entitled to exercise its voting rights pursuant to the terms of this subsection 11.4 paragraph, and the assignments voting rights of the selling Lender shall not be correspondingly reduced by the amount of such Voting Participant’s participation. Notwithstanding the foregoing, each Farm Credit Lender designated as described in subsection 11.7 hereof, no Lender may sell or assign its rights a Voting Participant on Schedule 13.11 shall be a Voting Participant without delivery of a Voting Participant Notification and interests under this Agreement without the prior written consent of the Company and the Administrative Agent. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (A) state the full name of such Voting Participant, as well as all contact information required of an assignee, (B) state the dollar amount of the participation purchased, and (C) include such other information as may be required by the Administrative Agent. The selling Lender and Borrowerthe Voting Participant shall notify the Administrative Agent and the U.S. Borrower within three Business Days of any termination of, or reduction or increase in the amount of, such participation and shall promptly upon request of the Administrative Agent update or confirm there has been no change in the information set forth in Schedule 13.11 or delivered in connection with any Voting Participant Notification. Each Borrower and the Administrative Agent shall be entitled to conclusively rely on information provided by a Lender identifying itself or its participant as a Farm Credit Lender without verification thereof and may also conclusively rely on the information set forth in Schedule 13.11 delivered in connection with any Voting Participant Notification or otherwise furnished pursuant to this paragraph and, unless and until notified thereof in writing by the selling Lender, may assume that after there have been no changes in the occurrence identity of Voting Participants, the dollar amount of participations, the contact information of the participants or any other information furnished to any Borrower or the Administrative Agent pursuant to this paragraph. The voting rights hereunder are solely for the benefit of the Voting Participants and shall not inure to any assignee or participant of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be requiredVoting Participant.
Appears in 1 contract
Sources: Credit Agreement (J M SMUCKER Co)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, Loans made and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons (“Participants”) participating interests in other than natural persons); provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 13.10, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principalsuch a participation has been granted shall have the benefits of Section 1.10 and Section 10.3 hereof; provided, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to that any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed limited to have the rights amount that would be payable to the Lender if there were no participation. Each Lender that sells a participation shall, acting solely for this purpose as an agent of set-off provided in subsection 11.8 hereof in respect the Borrower, maintain a register on which it enters the name and address of its participating each participant and the principal amounts (and stated interest) of each participant’s interest in amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans, or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“"Participants”") participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such salesale together with payment of a $3,500 processing and recording fee; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s 's consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ ' affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s 's or Agent’s 's possession concerning Borrower and any of Borrower’s 's Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s 's Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s 's Subsidiaries in connection with such Lender’s 's or Agent’s 's credit evaluation of Borrower and Borrower’s 's Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents other than any amendment, modification or waiver with respect to any Loan or Commitment in which such Participant has an interest which forgives principal, interest or fees (other than Agent’s 's fees) or reduces the interest rate or fees (other than Agent’s 's fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s 's fees) on, any such Loan or Commitment or releases any Guarantor. No Participant shall be a "Lender" for purposes of this Agreement.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.in
Appears in 1 contract
Sources: Credit Agreement (M I Homes Inc)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders Eligible Assignees, subject to the consent of the Borrower (such consent not to be unreasonably withheld or other financial institutions delayed) unless (“Participants”x) participating interests in any Revolving Credit Loan owing an Event of Default has occurred and is continuing at the time of such participation or (y) such participation is to such a Lender, an Affiliate of a Lender or an Approved Fund; provided that no such participation shall relieve any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces such a participation has been granted shall have the interest rate or fees (other than Agent’s fees) payable with respect benefits of Section 1.11 and Section 10.3 hereof. The Borrower authorizes each Lender to disclose to any participant or prospective participant under this Section any financial or other information pertaining to the Borrower or any Subsidiary thereof, provided that such Loan participant or Commitment, postpones prospective participant shall have agreed in writing prior to its receipt of such information to maintain all such information confidential and not to disclose such information to any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, Person except any such Loan information (a) that has become generally available to the public, (b) if required or Commitment appropriate in any report, statement or releases testimony submitted to any Guarantor.
regulatory body having or claiming to have jurisdiction over such Lender, (c) if required or appropriate in response to any summons or subpoena or in connection with any litigation or (d) Borrower agrees in order to comply with any law, order, regulation or ruling applicable to such Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant shall be deemed to have participant and the rights principal amounts (and stated interest) of set-off provided in subsection 11.8 hereof in respect of its participating each participant’s interest in amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (Penford Corp)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and participations in accordance with applicable law, L/C Obligations and Swing Loans and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons (“Participants”) participating interests in other than Disqualified Institutions); provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further, that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 13.11, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveexercise rights under this Agreement and the other Loan Documents and to enforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver of the Loan Documents that would reduce the amount of or postpone any fixed date for payment of any Obligation in which such participant has an interest which requires the consent of each affected Lender pursuant to clause (i) or (ii) of the first proviso of Section 13.13(a) (subject to the other provisions of Section 13.13 including clause (b) thereof). Subject to Section 13.25 hereof, the Borrower authorizes each Lender to disclose to any participant or prospective participant (which, for the avoidance of doubt, shall exclude any Disqualified Institution) under this Section 13.11 any financial or other information pertaining to Holdings, any of its Subsidiaries or Unrestricted Subsidiaries. Any party which has been granted a participation shall be entitled to the benefits of Section 1.12, Section 10.3 and Section 13.4 hereof only to the extent of the benefits accruing to the Lender granting the Participation if such participant is not an Affiliate or Related Fund of a Lender. Each Participant shall be entitled to the benefits of Section 13.1 hereof as if it were a Lender; provided, however, for the avoidance of doubt, the Borrower shall not, at any time, be obligated to pay additional amounts pursuant to Section 13.1(a) with respect to any Loan or Commitment in which withholding tax that is imposed on amounts payable to such Participant has an interest at the time it acquires a participation in the Loans or Commitments made under this Agreement, except to the extent that such Participant is the Participant of a Lender who was entitled to receive such additional amounts from the Borrower. Each Lender that sells a participation shall maintain a register on which forgives principal, interest or fees (other than Agentit records the name and address of each participant and the principal amounts of each participant’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating Loans, Commitments or other interests sold to each Participanthereunder, which entries shall be conclusive absent manifest error. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant Notwithstanding anything herein to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereofcontrary, no Lender may sell shall grant participations in the Loans or assign Commitments to the Sponsor or any of its rights Affiliates that is not a Debt Fund Affiliate. Any participation made to any Person in violation of this Section 13.11 shall be void ab initio. In the event a participation is granted to a Person who does not satisfy the eligibility requirements of this Section 13.11, the Borrower shall be entitled to pursue any remedy available to it (whether at law or in equity, including specific performance to unwind such participation) against the Lender selling the participation and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be requiredparticipant.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Participants. Subject to the approval of the Examining Authority, each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, Revolving Loans made and/or Revolving Credit Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons (each, a “ParticipantsParticipant”) participating interests in ); provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such Participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender the Administrator shall have the right no obligation or responsibility to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any LenderParticipant, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or Participant further shall have been declared or shall have become due and payable upon the occurrence of deliver a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information signed disclosure statement in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent form as approved by Borrower or Borrower’s Subsidiaries FINRA. Any agreement pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant participation is granted shall be subject to provide that the confidentiality provisions of this Agreement.
(c) Each granting Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of Broker/Dealer under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant has an interest interest. Each Lender that sells a participation shall maintain a register on which forgives principal, interest or fees (other than Agent’s fees) or reduces it enters the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment name and address of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have and the rights principal amounts (and stated interest) of set-off provided in subsection 11.8 hereof in respect of its participating each Participant’s interest in amounts owing the Revolving Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except (i) the Broker/Dealer or (ii) to the same extent as if that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5fl.3-l(c) of the amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrator (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrator) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Revolving Note and Cash Subordination Agreement (Clear Street Group Inc.)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons (“Participants”) participating interests in other than the Parent, the Borrower and their Subsidiaries); provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 13.12, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrowers under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided in subsection 11.8 Section 1.12 and Section 10.3 hereof in respect of its participating interest in amounts owing under the Loan Documents (but to the same extent as if the amount Lender from which it purchases its participation is entitled to such benefits). Each Lender that sells a participation shall, acting solely for this purpose as an agent of its participating the Borrowers, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest were owing directly to it as a Lender in the Loans or other obligations under the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any participant or any information relating to a participant's interest in subsection 11.8 hereof with respect any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the amount extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of participating interests sold to each ParticipantCredit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, such participation for all purposes of this Agreement notwithstanding any amount received pursuant notice to the exercise contrary. For the avoidance of doubt, the Administrative Agent (in its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons (“Participants”) participating interests in any Revolving Credit Loan owing to such Lenderother than a natural Person, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, the Borrower or any other interest Guarantor or any Affiliate or Subsidiary of the Borrower or any Guarantor); provided that no such participation shall relieve any Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of setSection 1.9 and Section 10.2 hereof; provided that such participant agrees to be subject to Section 13.1 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-off provided in subsection 11.8 hereof in respect fiduciary agent of its participating 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 amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (StoneX Group Inc.)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Revolving Credit Commitments held by such Lender at any time sell and from time to time to one or more Lenders other Persons (other than a natural Person or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, the Parent or any other interest of the Parent’s Affiliates or Subsidiaries); provided that no such participation shall relieve any Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 12.11, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower and Guarantors under this Agreement and the other Credit Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Credit Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Credit Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principalsuch a participation has been granted shall have the benefits of Sections 1.12, interest or fees 9.3 and 12.1 hereof (other than Agent’s feessubject to the requirements and limitations therein, including the requirements under Section 12.1(c) or reduces hereof (it being understood that the interest rate or fees (other than Agent’s feesdocumentation required under Section 12.1(c) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed delivered to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents Lender)) to the same extent as if the amount of its participating interest it were owing directly to it as a Lender under the Loan Documents, and had acquired its interest by assignment pursuant to Section 12.12 hereof; provided that each Lender such participant (A) agrees to be subject to the provisions of Sections 1.14 hereof as if it were an assignee under paragraph (b) of this Section; and (B) shall retain the right of set-off provided in subsection 11.8 not be entitled to receive any greater payment under Sections 9.3 or 12.1 hereof with respect to the amount of any participation, than its participating interests sold Lender would have been entitled to each Participant. Lenders agree to share with each Participantreceive, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant except to the exercise of its right of set-off, extent such amounts entitlement to be shared in accordance with subsection 11.8 hereof as if each Participant were receive a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of greater payment results from a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.Change -100-
Appears in 1 contract
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, may at any time time, without the consent of, or notice to, Borrower or the Administrative Agent, sell participations to one any Person (other than a Defaulting Lender, a natural Person, or more Lenders a holding company, investment vehicle or other financial institutions trust for, or owned and operated for the primary benefit of, a natural Person, or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a “ParticipantsParticipant”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment all or a portion of such Lender, ’s rights and/or obligations under this Agreement (including all or any other interest a portion of such Lender hereunderits Commitment and/or the Loans owing to it); provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (ci) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, (iii) Borrower, the other LendersAdministrative Agent, the L/C Issuer and Agent Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. HoweverFor the avoidance of doubt, any Participant that is an affiliate of any each Lender shall have be responsible for the right to deal directly with any other Lender and Borrower indemnity under Section 9.6 with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree payments made by such Lender to deal directly with such affiliate its Participant(s); provided, however, that each Lender needs . Any agreement or instrument pursuant to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or sells such a participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to shall provide that such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, 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 Loan Documents other than consent of the Participant, agree to any amendment, modification or waiver with respect to any Loan or Commitment described in which the proviso of Section 11.11 that affects such Participant has an interest which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Participant. Borrower agrees that each Participant shall be deemed entitled to have the rights benefits of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under Sections 3.1 through 3.4 and 3.6 (subject to the Loan Documents requirements and limitations therein) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant Section 11.10; provided that such Participant (A) agrees to be subject to the amount provisions of Section 2.14 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 3.1, 3.2 or 3.6, with respect to any participation, than its participating interest 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. Each Lender that sells a participation agrees, at Borrower’s request and expense, to use reasonable efforts to cooperate with Borrower to effectuate the provisions of Section 2.14 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.14 as though it were owing directly a Lender; provided that such Participant agrees to be subject to Section 11.5 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a Lender non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any Participant or any information relating to a Participant’s interest in subsection 11.8 hereof with respect any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the amount extent that such disclosure is necessary to establish that such commitment, loan, letter of participating interests sold to each Participantcredit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise such participation for all purposes of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.notwithstanding any 744209099 20664705
Appears in 1 contract
Sources: Credit Agreement (AssetMark Financial Holdings, Inc.)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, Loans made and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided in subsection 11.8 hereof in respect Section 1.9 and Section 10.3 hereof. Each Lender that sells a participation shall, acting solely for this purpose as an agent of its participating 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 amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any Commitments, Loans or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (Intl Fcstone Inc.)
Participants. (a) Any Lender Bank may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders banks or other financial institutions (“Participants”"PARTICIPANTS") participating interests in any Revolving Credit Loan owing to such LenderBank, any Note held by such LenderBank, any interest (including any Reimbursement Obligation) in any Facility Standby L/C with respect to such LenderBank, any Revolving Credit Loan Commitment of such LenderBank, or any other interest of such Lender Bank hereunder; provided, however, that upon the sale of any participating interest the selling Lender Bank shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s 's consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender Bank of participating interests to a Participant, such Lender’s Bank's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender Bank shall remain solely responsible for the performance thereof, and such Lender Bank shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other LendersBanks, and Agent 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. However, any Participant that is an affiliate of any Lender Bank shall have the right to deal directly with any other Lender Bank and Borrower with respect to any matter that is the subject of this Agreement, and Lenders Banks and Borrower agree to deal directly with such affiliate Participant(s); provided, 84 however, that each Lender Bank needs to deal only with other Lenders Banks (and not such other Lenders’ Banks' affiliate Participant(s)), in those matters in which the consent of any one or more Lenders Banks is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any LenderBank, and such rights do not apply to any Participants that are not affiliates of any LenderBank. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders Banks in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender Bank under this Agreement, any Note or any Facility Standby L/C or participation in any Facility Standby L/C.
(b) Borrower authorizes each Lender Bank and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s Bank's or Agent’s 's possession concerning Borrower and any of Borrower’s 's Subsidiaries which has been delivered to such Lender Bank or Agent by Borrower or Borrower’s 's Subsidiaries pursuant to this Agreement or which has been delivered to such Lender Bank or Agent by Borrower or Borrower’s 's Subsidiaries in connection with such Lender’s Bank's or Agent’s 's credit evaluation of Borrower and Borrower’s 's Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents other Other than any amendment, modification or waiver with respect to any Loan or Commitment in which such Participant has an interest which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof11.4, no Lender Bank may sell or assign its rights and interests under this Agreement without the written consent of each Lender Bank and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all LendersBanks, Borrower’s 's consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Revolving Credit Loan and Standby Letter of Credit Agreement (M I Schottenstein Homes Inc)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with any other Lender and Borrower with respect grant participations (to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any be evidenced by one or more Lenders is required. The rights set forth agreements or certificates of participation) in the immediately preceding sentence Loans made and/or Commitments held by such Lender at any time and from time to time to one or more other Persons; provided that (a) no such participation shall apply only to Participants that are affiliates relieve any Lender of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender obligations under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to no such participant shall have any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to rights under this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries except as provided in connection with such Lender’s or Agent’s credit evaluation of Borrower this Section 13.11, and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each the Administrative Agent shall have no obligation or responsibility to such participant. Any agreement pursuant to which such participation is granted shall provide that the granting Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided in subsection 11.8 hereof in respect Section 1.12, Section 10.4 and Section 13.1 (subject to the obligations and limitations of its participating interest in amounts owing under such Sections (and the Loan Documents compliance of such participant therewith as if it were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.12) (it being understood that the amount of its participating interest were owing directly documentation required under Section 13.1(e) shall be delivered to it the Lender who sells the participation). Each Lender that sells a participation shall, acting solely for this purpose as a Lender 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 the Loan Documents, Documents (the “Participant Register”); provided that each no Lender shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any participant or any information relating to a participant's interest in subsection 11.8 hereof with respect any commitments, loans or its other obligations under any Loan Document) to any Person except to the amount 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 participating interests sold to each Participantthe United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Lender 80 #92469623v14 80 shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, such participation for all purposes of this Agreement notwithstanding any amount received pursuant notice to the exercise contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding anything to the contrary in this Section 13.11, no such participation shall be made to the Borrower or any of its right Affiliates or Subsidiaries, a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of set-offone or more natural persons), such amounts to or a Defaulting Lender or a Person that would be shared in accordance with subsection 11.8 hereof as a Defaulting Lender if each Participant it were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (J M SMUCKER Co)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces such a participation has been granted shall have the interest rate or fees (other than Agent’s fees) payable with respect benefits of Section 1.12 and Section 10.3 hereof. The Borrower authorizes each Lender to disclose to any participant or prospective participant under this Section any financial or other information pertaining to the Borrower or any Subsidiary thereof, provided that such Loan participant or Commitment, postpones prospective participant shall have agreed in writing prior to its receipt of such information to maintain all such information confidential and not to disclose such information to any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, Person except any such Loan information (a) that has become generally available to the public. (b) if required or Commitment appropriate in any report, statement or releases testimony submitted to any Guarantor.
regulatory body having or claiming to have jurisdiction over such Lender, (c) if required or appropriate in response to any summons or subpoena or in connection with any litigation or (d) Borrower agrees that each Participant shall be deemed in order to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents comply with any law, order, regulation or ruling applicable to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (Penford Corp)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons (“Participants”) participating interests in any Revolving Credit Loan owing to such Lenderother than a natural Person, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, the Borrower or any other interest Guarantor or any Affiliate or Subsidiary of the Borrower or any Guarantor); provided that no such participation shall relieve any Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant a participation has been granted shall be deemed to have the rights benefits of set-off provided in subsection 11.8 hereof in respect Section 1.9 and Section 10.3 hereof. Each Lender that sells a participation shall, acting solely for this purpose as an agent of its participating 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 amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (Intl Fcstone Inc.)
Participants. Each Bank shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Revolving Credit Commitments held by such Bank at any time sell and from time to time to one or more Lenders or other financial institutions Persons (each a “ParticipantsParticipant”) participating interests in ); provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale Bank of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one no obligation or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered responsibility to such Lender or Agent by Borrower or Borrower’s Subsidiaries participant. Any agreement pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant participation is granted shall be subject to provide (a) that the confidentiality provisions of this Agreement.
(c) Each Lender granting Bank shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Company under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Bank will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan fixed date for payment of any indebtedness, obligation or Commitment liability in which such Participant participant has an interest which forgives principalinterest, interest or fees and (other than Agent’s feesb) or reduces that the interest rate or fees (other than Agent’s fees) payable with respect participant agrees to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment be bound by Section 11.18 of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents this Agreement to the same extent as if it were a Bank. Any party to which such a participation has been granted shall have the amount benefits of its participating Section 9.3 and Section 9.4 hereof. The Company authorizes each Bank to disclose to any participant or prospective participant under this Section, if such person has agreed in writing to be bound by Section 11.18 below to the same extent as if it were a Bank, any financial or other information pertaining to the Company or any Subsidiary. Each Bank that sells a participation shall acting solely for this purpose as an agent of the Company 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 were owing directly to it as a Lender in the Loans or other obligations under the Loan Documents, Documents (the “Participant Register”); provided that each Lender no Bank shall retain have any obligation to disclose all or any portion of the right Participant Register (including the identity of set-off provided any Participant or any information relating to a Participant’s interest in subsection 11.8 hereof with respect any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the amount extent that such disclosure is necessary to establish that such commitment, loan, letter of participating interests sold to each Participantcredit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Lenders agree to share with each ParticipantThe entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Participant, by exercising Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, such participation for all purposes of this Agreement notwithstanding any amount received pursuant notice to the exercise contrary. For the avoidance of doubt, the Agent (in its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Participants. Each Bank shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and Reimbursement Obligations and/or Commitments and/or participations in accordance with applicable law, Swing Loans held by such Bank at any time sell and from time to time to one or more Lenders or other banks, insurance companies, commercial lenders and other financial institutions (“Participants”) participating interests in institutions; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale Bank of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by its obligations under this Agreement, and provided further that no participation agreement such participant shall provide have any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations rights under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 14.11, and the Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any party to which such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Lender a participation has been granted shall have the right benefits of Section 3.6 and Section 11.3 hereof but shall not be entitled to deal directly with receive any other Lender and Borrower greater payment under either such Section than the Bank granting such participation would have been entitled to receive with respect to the rights transferred. Any agreement pursuant to which any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with Bank may grant such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in shall provide that such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant Bank shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower hereunder including, without limitation, the consent of right to approve any Participant, any amendment, amendment or modification or waiver of any provision of the Loan Documents other than this Agreement; provided that such participation agreement may provide that such Bank will not agree to any amendmentmodification, modification amendment or waiver with respect to of this Agreement that would (A) increase any Commitment of such Bank if such increase would also increase the participant's obligations, (B) forgive any amount of or postpone the date for payment of any principal of or interest on any Loan or Commitment Reimbursement Obligation or of any fee payable hereunder in which such Participant participant has an interest or (C) reduce the stated rate at which forgives principal, interest or fees (accrue or other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) amounts payable with respect hereunder in which such participant has an interest. The Borrower authorizes each Bank to disclose to any such Loan participant or Commitment, postpones prospective participant under this Section 14.11 any date fixed for any regularly scheduled payment of principal of, financial or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents information pertaining to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent subject to such sale or assignment shall not be requiredSection 14.21 hereof.
Appears in 1 contract
Participants. (a) Any In addition to the other rights provided in this Section 10.2, each Lender maymay without notice to or consent from the Administrative Agent or the Borrowers, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell participations to one or more Lenders Persons in or other financial institutions (“Participants”) participating interests in any Revolving Credit to all or a portion of its rights and obligations under the Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunderDocuments; provided, however, that upon the sale that, whether as a result of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice term of any Loan Document or of such sale; and provided furthergrant or participation, however, that (except as otherwise provided in subsection (c) belowi) no Participant’s consent such participant shall have a commitment, or be required deemed to approve have made an offer to commit, to make any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this AgreementLoan hereunder, and, except as provided in the immediately following sentenceapplicable option agreement, Borrowernone shall be liable for any obligation of such Lender hereunder, the other Lenders(ii) such Lender’s rights and obligations, and Agent the rights and obligations of the Loan Parties and the Secured Parties towards such Lender, under any Loan Document shall remain unchanged and each other party hereto shall continue to deal solely and directly with such Lender in connection with such Lender’s rights , which shall remain the holder of the Obligations in the Register, except that (A) each such participant shall be entitled to the benefit of Sections 2.11 and obligations under this Agreement. However2.12, any Participant that but only to the extent such participant delivers the tax forms such Lender is an affiliate required to collect pursuant to Section 2.12(a) and then only to the extent of any amount to which such Lender shall have would be entitled in the right to deal directly with absence of any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s)grant or participation; provided, however, that each Lender needs in no case shall such participant have the right to deal only with other Lenders enforce any of the terms of any Loan Document, and (and not such other Lenders’ affiliate Participant(s)), in those matters in which iii) the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence such participant shall apply only to Participants that are affiliates of any Lendernot be required (either directly, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in restraint on such Lender’s ability to consent hereunder or Agent’s possession concerning Borrower and otherwise) for any of Borrower’s Subsidiaries which has been delivered to such Lender amendments, waivers or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents other than any amendment, modification or waiver consents with respect to any Loan Document or Commitment to exercise or refrain from exercising any powers or rights such Lender may have under or in which such Participant has an interest which forgives principalrespect of the Loan Documents (including the right to enforce or direct enforcement of the Obligations), interest or fees except for those described in clauses (other than Agent’s feesii) or reduces the interest rate or fees and (other than Agent’s feesiii) payable of Section 10.1(a) with respect to any such Loan amounts, or Commitment, postpones any date dates fixed for any regularly scheduled payment of principal ofamounts, to which such participant would otherwise be entitled and, except for those described in Section 10.1(a)(iv) (or interest or fees (other than Agent’s fees) onamendments, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof consents and waivers with respect to Section 9.10 to release all or substantially all of the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a LenderCollateral).
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Term Loan Agreement (Bombay Co Inc)
Participants. (a) Any Lender Bank may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders banks or other financial institutions (“"Participants”") participating interests in any Revolving Credit Loan owing to such LenderBank, any Note held by such LenderBank, any interest (including any Reimbursement Obligation) in any Facility Standby L/C with respect to such LenderBank, any Revolving Credit Loan Commitment of such LenderBank, or any other interest of such Lender Bank hereunder; provided, however, that upon the sale of any participating interest the selling Lender Bank shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s 's consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender Bank of participating interests to a Participant, such Lender’s Bank's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender Bank shall remain solely responsible for the performance thereof, and such Lender Bank shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other LendersBanks, and Agent 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. However, any Participant that is an affiliate of any Lender Bank shall have the right to deal directly with any other Lender Bank and Borrower with respect to any matter that is the subject of this Agreement, and Lenders Banks and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender Bank needs to deal only with other Lenders Banks (and not such other Lenders’ Banks' affiliate Participant(s)), in those matters in which the consent of any one or more Lenders Banks is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any LenderBank, and such rights do not apply to any Participants that are not affiliates of any LenderBank. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders Banks in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents other than any amendment, modification or waiver with respect to any Loan or Commitment in which such Participant has an interest which forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.amounts
Appears in 1 contract
Sources: Revolving Credit Loan Agreement (M I Schottenstein Homes Inc)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions (“Participants”) participating interests in Persons; provided that no such participation shall relieve any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrowers under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principal, interest or fees (other than Agent’s fees) or reduces such a participation has been granted shall have the interest rate or fees (other than Agent’s fees) payable with respect benefits of Section 1.11 and Section 9.3 hereof. The Borrowers authorize each Lender to disclose to any participant or prospective participant under this Section any financial or other information pertaining to the Borrowers or any Subsidiary thereof, provided that such Loan participant or Commitment, postpones prospective participant shall have agreed in writing prior to its receipt of such information to maintain all such information confidential and not to disclose such information to any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, Person except any such Loan information (a) that has become generally available to the public, (b) if required or Commitment appropriate in any report, statement or releases testimony submitted to any Guarantor.
regulatory body having or claiming to have jurisdiction over such Lender, (c) if required or appropriate in response to any summons or subpoena or in connection with any litigation or (d) Borrower agrees that each Participant shall be deemed in order to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents comply with any law, order, regulation or ruling applicable to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (Penford Corp)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, may at any time time, without the consent of, or notice to, the Borrowers, the Agents, the Issuing Banks or the Swing Line Lender sell participations to one any person (other than a natural person, Borrower or more Lenders any of Borrower's Affiliates or other financial institutions Subsidiaries or any Permitted Holder or a Permitted Holder's Affiliates) (“Participants”) participating interests in any Revolving Credit Loan owing to such Lendereach, any Note held by such Lender, any interest (including any Reimbursement Obligationa "Participant") in any Facility L/C with respect to such Lender, any Commitment all or a portion of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s 's rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to the other parties to it); provided that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations and (iii) Borrowers, Agents and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, Lenders and Agent Issuing Banks shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement. However, any Participant Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that is an affiliate of any such Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right to approve, without enforce the consent of any Participant, Loan Documents and to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver with respect described in the first proviso to any Loan or Commitment in which Section 10.09(b) that affects such Participant has an interest which forgives principalParticipant. Subject to paragraph (e) of this Section, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) each Borrower agrees that each Participant shall be deemed entitled to have the rights benefits of set-off provided in subsection 11.8 hereof in respect Sections 2.08(e), 2.15, 2.16 and 2.17 (subject to the requirements of its participating interest in amounts owing under the Loan Documents those Sections) to the same extent as if the amount of its participating interest it were owing directly to it as a Lender under and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the Loan Documentsextent permitted by law, each Participant also shall be entitled to the benefits of Section 10.06 as though it were a Lender, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, such Participant agrees to share with each Lender, any amount received pursuant be subject to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof Section 2.19 as if each Participant though it were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (Samsonite Corp/Fl)
Participants. (a) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more Lenders or other financial institutions (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, except as provided in the immediately following sentence, Borrower, the other Lenders, and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. However, any Participant that is an affiliate of any Each Lender shall have the right at its own cost to deal directly with grant participations (to be evidenced by one or more agreements or certificates of participation) in the Loans made and Reimbursement Obligations and/or Revolving Credit Commitment and/or participations in Swing Loans held by such Lender at any time and from time to time to one or more other banks, insurance companies, commercial lenders and other financial institutions; provided that no such participation shall relieve any Lender and Borrower with respect to of any matter that is the subject of its obligations under this Agreement, and Lenders and Borrower agree to deal directly with provided further that no such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of participant shall have any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or except as provided in this Section 14.11, and the Notes are due and unpaid, or Administrative Agent shall have no obligation or responsibility to such participant. Any party to which such a participation has been declared or granted shall have become due the benefits of Section 3.6 and payable upon Section 11.3 hereof but shall not be entitled to receive any greater payment under either such Section than the occurrence of a Default or an Event of Default, each Participant shall be deemed Lender granting such participation would have been entitled to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall receive with respect to its Participants, if any, the rights transferred. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to approveenforce the obligations of the Borrower hereunder including, without limitation, the consent of right to approve any Participant, any amendment, amendment or modification or waiver of any provision of the Loan Documents other than this Agreement; provided that such participation agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of this Agreement that would (A) increase the Revolving Credit Commitment of such Lender if such increase would also increase the participant’s obligations, (B) forgive any amount of or postpone the date for payment of any principal of or interest on any Loan or Commitment Reimbursement Obligation or of any fee payable hereunder in which such Participant participant has an interest or (C) reduce the stated rate at which forgives principal, interest or fees (accrue or other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) amounts payable with respect hereunder in which such participant has an interest. The Borrower authorizes each Lender to disclose to any such Loan participant or Commitment, postpones prospective participant under this Section 14.11 any date fixed for any regularly scheduled payment of principal of, financial or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents information pertaining to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of set-off provided in subsection 11.8 hereof with respect to the amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a Lender.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent subject to such sale or assignment shall not be requiredSection 14.21 hereof.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Gallagher Arthur J & Co)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, Loans made and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders Eligible Assignees, subject to the consent of the Borrower (such consent not to be unreasonably withheld or other financial institutions delayed) unless (“Participants”x) participating interests in any Revolving Credit Loan owing an Event of Default has occurred and is continuing at the time of such participation or (y) such participation is to such a Lender, an Affiliate of a Lender or an Approved Fund; provided that no such participation shall relieve any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lender, or any other interest of such Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principalsuch a participation has been granted shall have the benefits of Section 1.11, interest or fees (other than Agent’s fees) or reduces the interest rate or fees (other than Agent’s fees) payable with respect Section 10.3 and Section 13.1 hereof. The Borrower authorizes each Lender to disclose to any participant or prospective participant under this Section any financial or other information pertaining to the Borrower or any Subsidiary thereof, provided that such Loan participant or Commitment, postpones prospective participant shall have agreed in writing prior to its receipt of such information to maintain all such information confidential and not to disclose such information to any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, Person except any such Loan information (a) that has become generally available to the public, (b) if required or Commitment appropriate in any report, statement or releases testimony submitted to any Guarantor.
regulatory body having or claiming to have jurisdiction over such Lender, (c) if required or appropriate in response to any summons or subpoena or in connection with any litigation or (d) Borrower agrees in order to comply with any law, order, regulation or ruling applicable to such Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant shall be deemed to have participant and the rights principal amounts (and stated interest) of set-off provided in subsection 11.8 hereof in respect of its participating each participant’s interest in amounts owing the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) to any Person except to the same extent as if 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 amount of its participating interest were owing directly to it as a Lender under United States Treasury Regulations. The entries in the Loan DocumentsParticipant Register shall be conclusive absent manifest error, provided that each and such Lender shall retain treat each Person whose name is recorded in the right Participant Register as the owner of set-off provided in subsection 11.8 hereof with respect such participation for all purposes of this Agreement notwithstanding any notice to the amount contrary. For the avoidance of participating interests sold to each Participant. Lenders agree to share with each Participantdoubt, and each Participant, by exercising the right of set-off provided Administrative Agent (in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof capacity as if each Administrative Agent) shall have no responsibility for maintaining a Participant were a LenderRegister.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Delayed Draw Term Loan Credit Agreement (Penford Corp)
Participants. Each Lender shall have the right at its own cost to grant participations (ato be evidenced by one or more agreements or certificates of participation) Any Lender may, in the ordinary course of its commercial banking business Loans made and in accordance with applicable law, Reimbursement Obligations and/or Commitments held by such Lender at any time sell and from time to time to one or more Lenders or other financial institutions Persons (“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any interest (including any Reimbursement Obligation) in any Facility L/C with respect to such Lender, any Commitment of such Lenderother than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, or the Borrower or any other interest of the Borrower’s Affiliates or Subsidiaries); provided that no such participation shall relieve any Lender hereunder; provided, however, that upon the sale of any participating interest the selling Lender shall provide promptly to Borrower and Agent notice of such sale; and provided further, however, that (except as otherwise provided in subsection (c) below) no Participant’s consent shall be required to approve any amendments, waivers or other modifications of this Agreement or of any document contemplated by this Agreement, and no participation agreement shall provide any Participant with such rights. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s its obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and such Lender shall remain the holder of any such Note for all purposes under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in the immediately following sentence, Borrower, the other Lendersthis Section 12.11, and the Administrative Agent shall continue have no obligation or responsibility to deal solely and directly with such Lender in connection with participant. Any agreement pursuant to which such Lender’s rights and obligations under this Agreement. However, any Participant participation is granted shall provide that is an affiliate of any the granting Lender shall have the right to deal directly with any other Lender and Borrower with respect to any matter that is the subject of this Agreement, and Lenders and Borrower agree to deal directly with such affiliate Participant(s); provided, however, that each Lender needs to deal only with other Lenders (and not such other Lenders’ affiliate Participant(s)), in those matters in which the consent of any one or more Lenders is required. The rights set forth in the immediately preceding sentence shall apply only to Participants that are affiliates of any Lender, and such rights do not apply to any Participants that are not affiliates of any Lender. Borrower agrees that if amounts outstanding under this Agreement or the Notes are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of a Default or an Event of Default, each Participant shall be deemed to have the right of set-off provided to Lenders in this Agreement in respect of its participating interest in amounts owing under this Agreement or any Note or Reimbursement Obligation to the same extent as if the amount of its participating interests were owing directly to it as a Lender under this Agreement, any Note or any Facility L/C or participation in any Facility L/C.
(b) Borrower authorizes each Lender and Agent to disclose to any Participant and any prospective Participant any and all financial information in such Lender’s or Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries pursuant to this Agreement or which has been delivered to such Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries prior to entering into this Agreement. Any Participant or prospective Participant shall be subject to the confidentiality provisions of this Agreement.
(c) Each Lender shall with respect to its Participants, if any, retain the sole right and responsibility to approveenforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the consent of any Participant, right to approve any amendment, modification or waiver of any provision of the Loan Documents other than Documents, except that such agreement may provide that such Lender will not agree to any amendmentmodification, modification amendment or waiver with respect to of the Loan Documents that would reduce the amount of or postpone any Loan or Commitment fixed date for payment of any Obligation in which such Participant participant has an interest interest. Any party to which forgives principalsuch a participation has been granted shall have the benefits of Section 1.11, interest or fees Section 10.3, and Section 12.1 hereof (other than Agent’s feessubject to the requirements and limitations therein, including the requirements under Section 12.1(g) or reduces (it being understood that the interest rate or fees (other than Agent’s feesdocumentation required under Section 12.1(g) payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) on, any such Loan or Commitment or releases any Guarantor.
(d) Borrower agrees that each Participant shall be deemed 108 delivered to have the rights of set-off provided in subsection 11.8 hereof in respect of its participating interest in amounts owing under the Loan Documents Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such participant (A) agrees to be subject to the amount provisions of Section 12.1(g) as if it were an assignee under Section 12.12(a); and (B) shall not be entitled to receive any greater payment under Sections 10.3 or 12.1, with respect to any participation, than its participating interest were owing directly Lender would have been entitled to it as 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. The Borrower and each Guarantor authorizes each Lender to disclose to any participant or prospective participant under this Section 12.11 any financial or other information pertaining to each Guarantor, the Loan DocumentsBorrower or any Subsidiary, provided that each Lender such participant or prospective participant shall retain the right of set-off provided in subsection 11.8 hereof with respect be subject to the amount provisions of participating interests sold to each Participant. Lenders agree to share with each Participant, and each Participant, by exercising the right of set-off provided in subsection 11.8 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with subsection 11.8 hereof as if each Participant were a LenderSection 12.25.
(e) Except for the sale of participating interests as described in this subsection 11.4 and the assignments as described in subsection 11.7 hereof, no Lender may sell or assign its rights and interests under this Agreement without the written consent of each Lender and Borrower, provided that after the occurrence of a Default or an Event of Default that has not been waived by all Lenders, Borrower’s consent to such sale or assignment shall not be required.
Appears in 1 contract
Sources: Credit Agreement (Centerspace)