Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.
Appears in 5 contracts
Samples: Assignment and Assumption (DPL Inc), Credit Agreement (DPL Inc), Assignment and Assumption (DPL Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, a Defaulting Lender holding company, investment vehicle or trust established 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 “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Lender and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names indemnities under Sections 2.20(e) and addresses of each of its Participants, and the amount of the participation sold 9.7 with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification which affects such Participant and for which the consent of such Lender is required (as described in subsections (aSection 10.1), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.19, 3.04 2.20 and 3.05 2.21 (subject to the requirements and limitations therein, including the requirements under Section 2.20(f) (it being understood that the documentation required under Section 2.20(f) shall be delivered by such Participant to the Lender granting such participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection Section 10.6(b); provided that such Participant (bA) agrees to be subject to the provisions of this SectionSections 2.23 as if it were an assignee under Section 10.6(b); and (B) shall not be entitled to receive any greater payment under Sections 2.19 or 2.20, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in any Requirement of 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 2.23 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 10.7 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.18(k) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 5 contracts
Samples: Credit Agreement (Bill.com Holdings, Inc.), Credit Agreement (CrowdStrike Holdings, Inc.), Credit Agreement (CrowdStrike Holdings, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender Person or the Borrower or any of the Borrower’s Affiliates (except for any Affiliate of Berkshire Hathaway not controlled directly or indirectly by the Borrower that is a commercial lender acquiring participations under this Agreement in the ordinary course of its business) or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Agent and Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold indemnity under Section 7.07 with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification described in subsections (a), (b) or (c) Section 8.01 requiring the consent of the first proviso to Section 10.01 each Lender directly affected thereby that directly affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.15, 3.04 2.18 and 3.05 8.04(c) (subject to the requirements and limitations therein, including the requirements under Section 2.18(g) (it being understood that the documentation required under Section 2.18(g) shall be delivered to the participating Lender or the applicable Withholding Agent to the extent required by Applicable Law)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.20 as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.18, with respect to any participation, than its participating Lender would have been entitled to receive. 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 2.20(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 8.05 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.19 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans 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 or to comply with other requirements under applicable tax law. 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.
Appears in 4 contracts
Samples: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Funding LLC), Credit Agreement (Midamerican Funding LLC)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Borrower, the Agent, any Issuing Bank or the Administrative AgentSwing Line Bank, sell participations to any Person (other than a natural personPerson (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) Advances owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Issuing Banks and Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold indemnity under Section 8.04 with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 8.01(b) that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.11, 3.04 8.04(f) and 3.05 2.14 (subject to the requirements and limitations therein, including the requirements under Section 2.14(f) (it being understood that the documentation required under Section 2.14(f) shall be delivered solely to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section; provided that such Participant (A) shall be subject to the provisions of Section 2.18 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 2.11 or 2.14, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. 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 2.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 8.05 as though it were a Lender; provided that such Participant agrees to shall be subject to Section 2.13 2.15 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and related interest) of each Participant’s interest in the Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 4 contracts
Samples: Credit Agreement (Hexcel Corp /De/), Credit Agreement (Hexcel Corp /De/), Credit Agreement (Hexcel Corp /De/)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person (or holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment Commitments and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, Agent and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a)w) increase such Lender’s Commitment, (bx) extend the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender, (y) reduce the rate at which interest is payable thereon (other than with respect to a waiver of implementation of interest at the Post-Default Rate) or (cz) release all or substantially all of the first proviso Guarantors from their Obligations under the Guaranty except as contemplated by Section 8.14(b) (but, for the avoidance of doubt, not including amendments or waivers of requirements to Section 10.01 join additional Guarantors), in each case, as applicable to that affects portion of such ParticipantLender’s rights and/or obligations that are subject to the participation. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.10, 3.04 5.1 and 3.05 5.4 (subject to the requirements and limitations therein, including the requirements under Section 3.10(g) (it being understood that the documentation required under Section 3.10(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 5.6 as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 5.1 or 3.10, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Regulatory Change 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 5.6 with respect to any Participant. To the extent permitted by lawApplicable Law, each Participant also shall be entitled to the benefits of Section 10.08 13.3 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 3.3 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans 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.
Appears in 4 contracts
Samples: Term Loan Agreement (Realty Income Corp), Term Loan Agreement (Spirit Realty Capital, Inc.), Term Loan Agreement (Spirit Realty Capital, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Borrower, the Agent, any Issuing Bank or the Administrative AgentSwing Line Bank, sell participations to any Person (other than a natural personPerson (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a Defaulting Lender natural Person) or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) Advances owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Issuing Banks and Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold indemnity under Section 8.04 with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.11, 3.04 8.04(f) and 3.05 2.14 (subject to the requirements and limitations therein, including the requirements under Section 2.14(f) (it being understood that the documentation required under Section 2.14(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.18 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 2.11 or 2.14, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. 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 2.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 8.05 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.15 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 4 contracts
Samples: Credit Agreement (Dollar General Corp), Credit Agreement (Dollar General Corp), Credit Agreement (Dollar General Corp)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Company or the Administrative Agent, sell participations to any Person (other than a natural person or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person, a Defaulting Lender Lender, or the Borrower Company or any of the BorrowerCompany’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerCompany, the Administrative Agent, and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.05(b) without regard to the existence of any participation. Each LenderLender that sells a participation shall, acting solely for this purpose as an a non-fiduciary agent of the Borrower Company, maintain a register on which it enters the name and address of each Participant and the principal amounts (and such agency being solely for tax purposesstated interest) of each Participant’s interest in the Obligations under the Loan Documents (the “Participant Register”), ; provided that no Lender shall maintain at such Lender’s Lending Office a register for the recordation have any obligation to disclose all or any portion of the names and addresses Participant Register to any Person (including the identity of each any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its Participantsother obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the amount of the participation sold to such Participant by such Lender and shall treat each Person whose name is recorded in the related interest amounts owing Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to such Participantthe contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower Company agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 10.09 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.10 as though it were a Lender.
Appears in 4 contracts
Samples: Credit Agreement (Fortive Corp), 364 Day Term Loan Credit Agreement (Fortive Corp), Term Loan Credit Agreement (Fortive Corp)
Participations. Any Lender of the Lenders may at any time, without the consent of, or notice to, the Borrower or the Administrative AgentBorrower, sell participations to any Person which would constitute an Eligible Transferee (other than a natural personperson or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a Defaulting Lender natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its the Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) Term Loan owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers Borrower shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participanttherewith. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that would (i) increase or other modification described in subsections (a)extend the term of such Lender’s Commitment, (bii) extend the date fixed for the payment of principal of or interest on the Term Loan or any portion of any fee hereunder payable to the Participant, (iii) reduce the amount of any such payment of principal, or (civ) of reduce the first proviso rate at which interest is payable thereon to Section 10.01 that affects a level below the rate at which the Participant is entitled to receive such Participantinterest (other than with respect to default interest). Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01Section 5 (subject to the requirements and limitations therein, 3.04 and 3.05 including the requirements of Section 5.03(f) (it being understood that the documentation required under Section 5.03(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and such Participant had acquired its interest by assignment pursuant to subsection (b) of this SectionSection 14.05(b); provided that such Participant shall not be entitled to receive any greater payment under Section 5 with respect to any participation, than its participating Lender would have been entitled to receive. To the extent permitted by lawLaw, each Participant also shall be entitled to the benefits of Section 10.08 4.03(a) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Term Loan or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant agrees Register shall be conclusive absent manifest error, and the parties hereto 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 be subject to Section 2.13 as though it were a Lenderthe contrary.
Appears in 4 contracts
Samples: Forbearance Agreement (Icagen, Inc.), Credit Agreement (Icagen, Inc.), Security Agreement (Icagen, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower Company or any of the BorrowerCompany’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the Administrative Agent, the Lenders and the L/C Issuers Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderLender that sells a participation shall, acting solely for this purpose as an agent of the Borrower Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and such agency being solely for tax purposesstated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”), ; provided that no Lender shall maintain at such Lender’s Lending Office a register for the recordation have any obligation to disclose all or any portion of the names and addresses Participant Register (including the identity of each any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its Participantsother obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the amount of the participation sold to such Participant by such Lender and shall treat each Person whose name is recorded in the related interest amounts owing Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to such Participantthe contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections clauses (ab), (bc) or and (cd) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.
Appears in 4 contracts
Samples: Pledge and Security Agreement (Host Hotels & Resorts L.P.), Pledge and Security Agreement (Host Hotels & Resorts L.P.), Pledge and Security Agreement (Host Hotels & Resorts, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower Company or any of the BorrowerCompany’s Affiliates or SubsidiariesAffiliates) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the Administrative Agent, the Lenders and the L/C Issuers Issuing Banks shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections clauses (aii)(A), (bB) or (cC) of the first proviso to Section 10.01 12.12(a) that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 Section 10.3 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To A Participant shall not be entitled to receive any greater payment under Section 10.3 than the extent permitted by law, each applicable Lender would have been entitled to receive with respect to the participation sold to such Participant. A Participant also that would be a foreign Lender if it were a Lender shall not be entitled to the benefits of Section 10.08 2.12 unless the Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Company, to comply with Section 2.12 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans, or its other obligations under any Loan Document) except each Lender that sells a participation shall make a copy of the Participant Register available for the Borrower and the Administrative Agent 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 agrees Register shall be conclusive absent manifest error, and the Borrower, the Lenders and the Administrative Agent 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 be subject to Section 2.13 as though it were a Lenderthe contrary.
Appears in 3 contracts
Samples: Assignment and Assumption (American Tower Corp /Ma/), Assignment and Assumption (American Tower Corp /Ma/), Assignment and Assumption (American Tower Corp /Ma/)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates its Affiliates, a Defaulting Lender or Subsidiariesa Disqualified Institution) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Swingline Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative AgentAgents, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes)Borrower, shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, such Participants and the amount rights, interests or obligations of such Participants in any Obligation, in any Commitment and in any right to receive any principal, interest and other payments thereunder (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error and the Borrower 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; provided that no Lender shall have the obligation to disclose all or a portion of the participation sold Participant Register (including the identity of the Participant or any information relating to a Participant’s interest in any Loans or other obligations under any Credit Document) to any Person except to the extent that such Participant by such Lender disclosure is necessary in connection with a Tax audit or other proceeding to establish that any loans are in registered form for U.S. federal income Tax purposes under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the related interest amounts owing to such Participantproposed United States Treasury Regulations. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections Section 11.01(a)(iv) or (av) or, to the extent the Participant is affected thereby, Section 11.01(b)(i), (bii) or (c) of the first proviso to Section 10.01 that affects such Participantiii). Subject to subsection (e) of this SectionSection 11.06(e), the Borrower agrees that each Participant (i) shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations of such Sections including the requirements under Section 3.01(e) (it being understood that the documentation required under Section 3.01(e) shall be delivered solely to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection Section 11.06(b) and (bii) of this Sectionshall be subject to Sections 3.06 and 11.13(a) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.06(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 11.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 2.12 as though it were a Lender.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Akumin Inc.), Revolving Credit Agreement (Akumin Inc.), Revolving Credit Agreement (Akumin Inc.)
Participations. Any Lender may at any timemay, without the consent of, or notice toof the Borrower, the Borrower Agent or the Administrative Agentany Issuer, sell participations to any Person one or more banks or other entities (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment and/or and the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement and the other Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, (iii) such Lender shall remain the holder of any applicable Note for all purposes under the Loan Documents, (iv) all amounts payable by the Borrower under this Agreement shall be determined as if such Lender had not sold participating interests and (iiiv) the Borrower, the Administrative Agent, the Lenders Issuer and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) forgives principal, interest or fees (other than Agent’s fees) or reduces the interest rate (other than Agent’s fees) of such Lender, in each case with respect to Loans or other modification described Obligations in subsections (a)which such Participant has an interest, (b2) increases or extends the Commitments in which such Participant has an interest, (3) postpones the final maturity of the Facility or any date fixed for any regularly scheduled payment of principal of, or interest or fees (other than Agent’s fees) or (c4) releases all or substantially all of the value of the guarantees provided by the Guarantors or all or substantially all of the Collateral. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the first proviso to Section 10.01 that affects U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Participant. Subject to subsection (e) Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this SectionAgreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Borrower agrees that each Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a LenderRegister.
Appears in 3 contracts
Samples: Credit Agreement (Beazer Homes Usa Inc), Credit Agreement (Beazer Homes Usa Inc), Credit Agreement (Beazer Homes Usa Inc)
Participations. Any Upon the consent of Agent and, in the absence of an Event of Default, Borrowers (such consent not to be unreasonably withheld), any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell grant participations in its extensions of credit hereunder to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) other lending institution (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); , provided that (i) no such participation shall be for an amount of less than $5,000,000 or any integral multiple of $1,000,000 in excess thereof (or, if less, the aggregate amount of the Loans and Loan Commitments of such Lender’s obligations under this Agreement shall remain unchanged), (ii) such no Participant shall thereby acquire any direct rights under this Agreement, (iii) no Participant shall be granted any right to consent to any amendment, except to the extent any of the same pertain to (1) reducing the aggregate principal amount of, or interest rate on, or fees applicable to, any Loan or (2) extending the final stated maturity of any Loan or the stated maturity of any portion of any payment of principal of, or interest or fees applicable to, any of the Loans; provided, that the rights described in this subclause (2) shall not be deemed to include the right to consent to any amendment with respect to or which has the effect of requiring any mandatory prepayment of any portion of any Loan or any amendment or waiver of any Default or Event of Default, (iv) no sale of a participation in extensions of credit shall in any manner relieve the originating Lender of its obligations hereunder, (v) the originating Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, (vi) Borrowers and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers Agent shall continue to deal solely and directly with such the originating Lender in connection with such the originating Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, Agreement and the amount of other Loan Documents, (vii) in no event shall any financial institution purchasing the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such grant a participation shall provide that such Lender shall retain in its participation interest in the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, Loans without the prior written consent of Agent, and, in the Participantabsence of a Default or an Event of Default, agree to any amendmentBorrowers, waiver or other modification described in subsections which consents shall not unreasonably be withheld and (a), (bviii) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant all amounts payable by Borrowers hereunder shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent determined as if it were a the originating Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided not sold any such Participant agrees to be subject to Section 2.13 as though it were a Lenderparticipation.
Appears in 3 contracts
Samples: Loan and Security Agreement (Neenah Foundry Co), Loan and Security Agreement (Neenah Foundry Co), Loan and Security Agreement (Neenah Foundry Co)
Participations. Any Lender Noteholder may at any time, time sell participating interests in the Note(s) held by such Noteholder without the consent of, or notice to, the Borrower of Administrative Agent or the Administrative Agent, sell participations to other Noteholders (any Person (other than a natural person, a Defaulting Lender or the Borrower or purchasing any of the Borrower’s Affiliates or Subsidiaries) (each, such participating interest being herein called a “Participant”); provided, however, in no event may any Noteholder sell, transfer, assign or pledge one or more participation interests with respect to its Note(s) in all or an aggregate amount in excess of a portion forty-nine percent (49%) interest in its Note(s) to a Person without (A) prior to the Securitization of any A Note, obtaining the prior written consent of Administrative Agent and (B) following the Securitization of any A Note, subject to a Rating Agency Confirmation having been obtained with respect to the granting of such Lenderparticipation interest, unless such Person is a Qualified Transferee, in which case Administrative Agent’s rights and/or obligations under this Agreement (including all consent shall not be required. Such consent may be granted or denied in the sole and absolute discretion of Administrative Agent, provided, however, that, such consent shall not be unreasonably withheld, conditioned or delayed in the case of any Person that is a portion Qualified Transferee, provided, further, that, in no event shall any Noteholder sell one or more participation interests with respect to its Note(s) to a Prohibited Person, Borrower, Guarantor, any Key Principal, any Borrower Party or any of its Commitment and/or their respective Affiliates. In the Loans (including event of an issuance by a Noteholder to a Participant of a participation interest in such LenderNoteholder’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that Note, (i) such Lender’s Noteholder shall remain the holder of its Note for all purposes of this Agreement and shall remain bound by all obligations of such Noteholder hereunder (and the Participant shall not enjoy any direct benefits under this Agreement shall remain unchangedor be deemed to be a party to this Agreement), (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers Agent shall continue to deal solely and directly with such Lender Noteholder in connection with such LenderNoteholder’s rights and obligations hereunder, (iii) Administrative Agent shall not under this Agreementany circumstances have any liability or owe any duties to any Participant and (iv) all amounts distributable hereunder in respect of such Note shall be determined as if such Noteholder had not sold such participation and shall be paid directly to such Noteholder. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), No Participant shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participantshave, and the amount applicable Noteholder will not allow such Participant to have, any voting rights hereunder in connection with any matters under Section 2.2 or elsewhere in this Agreement requiring the consent of the Noteholders, and Participants shall not have the right to further sub-participate or Transfer their interests without the prior written consent of Administrative Agent, such consent not to be unreasonably withheld, conditioned or delayed in the case of any Person that is a Qualified Transferee subject, in any event, to the proviso set forth in the first (1st) sentence of this Section 3.3. Each Noteholder agrees to incorporate the requirements of the preceding sentence into each participation sold to agreement which such Noteholder enters into with any Participant by such Lender and the related interest amounts owing to such Participant. Any any agreement or instrument pursuant to which a Lender Noteholder sells such a participation in the Loan shall further provide that such Lender shall retain the sole right to enforce Noteholder retains all liability and all rights of enforcement and approval under this Agreement and with respect to its Note, including the right to approve any amendment, modification or waiver of any provision of this Agreement; provided hereunder, and that such agreement or instrument may Participant has no rights of any kind hereunder. In connection with the sale of any such Participation, the selling Noteholder shall provide Administrative Agent with a copy of each such agreement. For the avoidance of doubt, it is understood and agreed that such Lender will not, without any Certificate evidencing a beneficial interest in a Securitization Vehicle shall not be deemed a participating interest in the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (aNote(s), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant and no holder thereof shall be entitled to the benefits deemed a Participant solely by reason of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided holding any such Participant agrees to be subject to Section 2.13 as though it were a LenderCertificates.
Appears in 3 contracts
Samples: Co Lender Agreement (CSAIL 2020-C19 Commercial Mortgage Trust), Lender Agreement (CSAIL 2020-C19 Commercial Mortgage Trust), Lender Agreement (CSAIL 2020-C19 Commercial Mortgage Trust)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower Company or any of the BorrowerCompany’s Affiliates or SubsidiariesAffiliates) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers Issuing Banks shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections clauses (aii)(A), (bB) or (cC) of the first proviso to Section 10.01 12.12(a) that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 Section 10.3 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To A Participant shall not be entitled to receive any greater payment under Section 10.3 than the extent permitted by law, each applicable Lender would have been entitled to receive with respect to the participation sold to such Participant. A Participant also that would be a foreign Lender if it were a Lender shall not be entitled to the benefits of Section 10.08 2.12 unless the Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Company, to comply with Section 2.12 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans, or its other obligations under any Loan Document) except each Lender that sells a participation shall make a copy of the Participant Register available for the Borrower and the Administrative Agent 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 agrees Register shall be conclusive absent manifest error, and the Borrower, the Lenders and the Administrative Agent 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 be subject to Section 2.13 as though it were a Lenderthe contrary.
Appears in 3 contracts
Samples: Assignment and Assumption (American Tower Corp /Ma/), Credit Agreement (American Tower Corp /Ma/), Loan Agreement (American Tower Corp /Ma/)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender Person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders Collateral Agent and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold indemnity under Section 9.05(c) with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver with respect to the following: decreasing any fees payable to such Participant hereunder or the amount of principal of or the rate at which interest is payable on the Loans in which such Participant has an interest, or extending any scheduled principal payment date or date fixed for the payment of interest on the Loans in which such Participant has an interest, increasing or extending the Commitments in which such Participant has an interest or releasing Guarantors (other modification described than in subsections (a), (bconnection with the sale of any Guarantor in a transaction permitted by Section 6.05) or (c) all or substantially all of the first proviso to Section 10.01 that affects such ParticipantCollateral). Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.14, 3.04 2.15, 2.16 and 3.05 2.20 (subject to the requirements and limitations therein, including the requirements under Section 2.20 (it being understood that the documentation required under Section 2.20(g) shall be delivered to the participating Lender))) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection Section 9.04(b); provided that such Participant (bA) agrees to be subject to the provisions of this SectionSections 2.21 as if it were an assignee under Section 9.04(b)) and (B) shall not be entitled to receive any greater payment under Sections 2.14, 2.15, 2.16 or 2.20, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. 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 2.21 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 9.06 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.18 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans 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.
Appears in 3 contracts
Samples: Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, Agent and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a)w) increase such Lender’s Commitment, (bx) extend the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender, (y) reduce the rate at which interest is payable thereon or (cz) release any Guarantor from its Obligations under the Guaranty (except as otherwise permitted under Section 7.12.(c)) in each case, as applicable to that portion of such Lender’s rights and/or obligations that are subject to the first proviso to Section 10.01 that affects such Participantparticipation. Subject to the immediately following subsection (e) of this Section), the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.12., 3.04 and 3.05 4.1., 4.4. to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section. To the extent permitted by lawApplicable Law, each Participant also shall be entitled to the benefits of Section 10.08 12.3. as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 3.3. as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (and is maintained in accordance with Sections 5f. 103-1(c) and 1.871-14(c)(1)(i) of the United States Treasury Regulations) (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Sections 5f.103-1(c) and 1.871-14(c)(1)(i) 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.
Appears in 3 contracts
Samples: Term Loan Agreement (Corporate Office Properties, L.P.), Term Loan Agreement (Corporate Office Properties, L.P.), Term Loan Agreement (Corporate Office Properties, L.P.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, a Defaulting Lender or Lender, the Borrower or any of the Borrower’s Subsidiaries or Affiliates or Subsidiariesany Disqualified Institution) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Lender, the Swingline Lender and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold indemnity under Section 12.3(c) with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification described in subsections (aSection 12.2(b), (bc), (d) or (ce) that directly and adversely affects such Participant and could not be effected by a vote of the first proviso to Section 10.01 that affects such ParticipantRequired Lenders. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.015.9, 3.04 5.10 and 3.05 5.11 (subject to the requirements and limitations therein, including the requirements under Section 5.11(g) (it being understood that the documentation required under Section 5.11(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 5.12 as if it were an assignee under paragraph (b) of this Section (without duplication of any benefits that would otherwise be owed to the Lender with respect to the Loans subject to such participation); and (B) shall not be entitled to receive any greater payment under Sections 5.10 or 5.11, with respect to any participation, than its participating Lender would have been entitled to receive unless the participation was made with the Borrower’s prior written consent. 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 5.12(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 12.4 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 5.6 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 3 contracts
Samples: Credit Agreement (SYNAPTICS Inc), First Amendment and Lender Joinder Agreement (SYNAPTICS Inc), Credit Agreement (SYNAPTICS Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower any Loan Party or the Administrative any Agent, sell participations to any Person (other than a Defaulting Lender, a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person, a Defaulting Lender ) or the Borrower Prologis or any of the Borrower’s Prologis’ Affiliates or Subsidiariesany Eligible Affiliates) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans and/or Fronting Loans) owing to it); provided that (ia) such Lender’s obligations under this Agreement shall remain unchanged, (iib) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations, (iiic) the BorrowerLoan Parties, the Administrative AgentAgents, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this AgreementAgreement and (d) such Lender agrees to be responsible for withholding any Taxes from payments to such Participant to the extent such withholding is required by Law. Each LenderLender that sells a participation shall, acting solely for this purpose as an a non-fiduciary agent of Borrowers, maintain a register on which it enters the Borrower name and address of each Participant and the principal amounts (and such agency being solely for tax purposesstated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”), ; provided that no Lender shall maintain at such Lender’s Lending Office a register for the recordation have any obligation to disclose all or any portion of the names and addresses Participant Register (including the identity of each any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its Participantsother obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the amount of the participation sold to such Participant by such Lender and shall treat each Person whose name is recorded in the related interest amounts owing Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to such Participantthe contrary. For the avoidance of doubt, no Agent (in its capacity as an Agent) shall have any responsibility for maintaining a Participant Register. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections clause (a), (b) or (cy) of the first proviso to Section 10.01 14.1.1 that affects such Participant. Subject to subsection (e) of this SectionSection 14.6.5, the each Borrower agrees that each Participant shall be entitled to the benefits of of, and be subject to the obligations in, Sections 3.017.1, 3.04 7.4 and 3.05 7.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this SectionSection 14.6.2. To the extent permitted by lawLaw, each Participant also shall be entitled to the benefits of Section 10.08 14.8 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 6.9 as though it were a Lender.
Appears in 3 contracts
Samples: Global Senior Credit Agreement (Prologis, L.P.), Global Senior Credit Agreement (Prologis, L.P.), Global Senior Credit Agreement (Prologis, L.P.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Borrowers or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender person or the Parent Borrower or any of the Parent Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Credit Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Swingline Loans) owing to it); provided that (i) such Lender’s obligations under this Credit Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the Administrative AgentAgents, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Credit Agreement. Each Lender, acting solely for this purpose as an a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes)Borrowers, shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, such Participants and the amount rights, interests or obligations of such Participants in any Obligation, in any Commitment and in any right to receive any principal, interest and other payments thereunder (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error and the Borrowers 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 Credit Agreement notwithstanding any notice to the contrary; provided that no Lender shall have the obligation to disclose all or a portion of the participation sold Participant Register (including the identity of the Participant or any information relating to a Participant’s interest in any Loans or other obligations under any Credit Document) to any Person except to the extent that such Participant by such Lender disclosure is necessary in connection with a Tax audit or other proceeding to establish that any loans are in registered form for U.S. federal income Tax purposes under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the related interest amounts owing to such Participantproposed United States Treasury Regulations. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Credit Agreement and to approve any amendment, modification or waiver of any provision of this Credit Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections Section 11.01(a)(iv) or (av) or, to the extent the Participant is affected thereby, Section 11.01(b)(i), (bii) or (c) of the first proviso to Section 10.01 that affects such Participantiii). Subject to subsection (e) of this SectionSection 11.06, the Borrower agrees that each Participant (i) shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations of such Sections including the requirements under Section 3.01(e) (it being understood that the documentation required under Section 3.01(e) shall be delivered solely to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this SectionSection 11.06 and (ii) shall be subject to Sections 3.06 and 11.13(a) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section 11.06. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 11.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 2.12 as though it were a Lender.
Appears in 3 contracts
Samples: Credit Agreement (Live Nation Entertainment, Inc.), Credit Agreement (Live Nation Entertainment, Inc.), Credit Agreement (Live Nation Entertainment, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender Person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Parent, the Borrower, the Administrative Agent, the Lenders Issuing Banks and the L/C Issuers Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to (w) increase such Lender’s Commitment, (x) extend the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender, (y) reduce the rate at which interest is payable thereon or (z) release any amendment, waiver or other modification described in subsections (aGuarantor from its Obligations under the Guaranty except as contemplated by Section 8.13.(b), (b) or (c) in each case, as applicable to that portion of such Lender’s rights and/or obligations that are subject to the first proviso to Section 10.01 that affects such Participantparticipation. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.10., 3.04 5.1., 5.4. (subject to the requirements and 3.05 limitations therein, including the requirements under Section 3.10.(g) (it being understood that the documentation required under Section 3.10.(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 5.6. as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 5.1. or 3.10., with respect to any participation, than its participating Lender would have been entitled to receive. 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 5.6. with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 13.3. as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 3.3. as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 3 contracts
Samples: Credit Agreement (Sunstone Hotel Investors, Inc.), Credit Agreement (Sunstone Hotel Investors, Inc.), Credit Agreement (Sunstone Hotel Investors, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Revolving Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations, (iii) the Borrower, the Administrative Agent, Agent and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, and (iv) each Lender that sells a participation shall, acting solely for this purpose as an a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes)Borrower, shall maintain at such Lender’s Lending Office a register for on which it enters the recordation name and address of each Participant and the principal amounts of each Participant’s interest in the Revolving Loans and any 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 names and addresses Participant Register (including the identity of each any Participant or any information relating to a Participant’s interest in any commitments, loans, or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of its Participantsthe United States Treasury Regulations, or is otherwise required thereunder. The entries in the Participant Register shall be conclusive absent manifest error, and the amount Borrower, the Lenders and the Administrative Agent 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 notice to the contrary. It is intended that any Revolving Loans or other obligations issued pursuant to this Agreement or any Loan Document shall be maintained at all times in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the participation sold to such Participant by such Lender Code, Treasury Regulation Section 5f.103-1(c) and the related interest amounts owing to such Participantprovisions of this Agreement shall be construed in accordance with this intention. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations therein read as if a Participant was a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.14 as though it were a Lender.
Appears in 3 contracts
Samples: Assignment and Assumption (TJX Companies Inc /De/), 2024 Revolving Credit Agreement (TJX Companies Inc /De/), 364 Day Revolving Credit Agreement (TJX Companies Inc /De/)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a Defaulting Lender natural Person) or the Borrower or any of the Borrower’s Affiliates Subsidiaries or SubsidiariesAffiliates) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Lender, the Swingline Lender and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold indemnity under 15.7 with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification described in subsections Section 14.1(a)(i) through (a), (biii) or (ca)(ix) of the first proviso to Section 10.01 that directly and adversely affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01Section 16 and Section 2.19 (subject to the requirements and limitations therein, 3.04 and 3.05 including the requirements under Section 16.7 (it being understood that the documentation required under Section 16.7 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 14.2 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 16 or Section 2.19, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. 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 14.2(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits benefit of Section 10.08 any right of setoff provided herein as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.18 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 of (and stated interest on) each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 3 contracts
Samples: Credit Agreement (Quanex Building Products CORP), Credit Agreement (Quanex Building Products CORP), Credit Agreement (Quanex Building Products CORP)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, a Defaulting Lender holding company, investment vehicle or trust established 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 “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Lender and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names indemnities under Sections 2.20(e) and addresses of each of its Participants, and the amount of the participation sold 9.7 with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification which affects such Participant and for which the consent of such Lender is required (as described in subsections (aSection 10.1), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.19, 3.04 2.20 and 3.05 2.21 (subject to the requirements and limitations therein, including the requirements under Section 2.20(f) (it being understood that the documentation required under Section 2.20(f) shall be delivered by such Participant to the Lender granting such participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection Section 10.6(b); provided that such Participant (bA) agrees to be subject to the provisions of this SectionSections 2.23 as if it were an assignee under Section 10.6(b); and (B) shall not be entitled to receive any greater payment under Sections 2.19 or 2.20, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in any Requirement of 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 2.23 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 10.7 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.18(k) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 3 contracts
Samples: Credit Agreement (Alkami Technology, Inc.), Credit Agreement (Alkami Technology, Inc.), Credit Agreement (Stitch Fix, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Borrower, the Swingline Lender, any Issuing Bank or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or SubsidiariesSubsidiaries ) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations LC Exposures and/or Swing Line Swingline Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers Issuing Banks shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation indemnity under Section 9.4(c) without regard to the existence of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participantany participation. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 9.2(b) that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.15, 3.04 2.16 and 3.05 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 9.8 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.18 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans, LC Exposures or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 3 contracts
Samples: Credit Agreement (Borgwarner Inc), Credit Agreement (Borgwarner Inc), Credit Agreement (Borgwarner Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender Person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Revolving Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Banks and the L/C Issuers Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to (w) increase such Lender’s Commitment, (x) extend the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender, (y) reduce the rate at which interest is payable thereon or (z) release any amendment, waiver or other modification described in subsections (aGuarantor from its Obligations under the Guaranty except as contemplated by Section 8.14(b), (b) or (c) in each case, as applicable to that portion of such Lender’s rights and/or obligations that are subject to the first proviso to Section 10.01 that affects such Participantparticipation. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.10, 3.04 5.1, 5.4 (subject to the requirements and 3.05 limitations therein, including the requirements under Section 3.10(g) (it being understood that the documentation required under Section 3.10(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 5.6 as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 5.1 or 3.10, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Regulatory Change 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 5.6 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 13.3 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 3.3 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as the Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 3 contracts
Samples: Credit Agreement (Tier Reit Inc), Credit Agreement (Tier Reit Inc), Credit Agreement (Tier Reit Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person person (other than a natural person, a Defaulting Lender Black Diamond or the Borrower or any of the Borrower’s Affiliates or SubsidiariesAres) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations; (iii) the Borrower, the Administrative Agent, Agent and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement; and (iv), in the event that the Borrower or any of its Affiliates are the Participant, the other Lenders have been offered the opportunity to sell participations to such Participant on a pro-rata basis. Each LenderLender that sells a participation shall, acting solely for this purpose as an a non-fiduciary agent of Borrower, maintain a register on which it enters the Borrower name and address of each Participant and the principal amounts of each Participant’s interest in the Loans held by it (the “Participant Register”). The entries in the Participant Register shall be conclusive, absent manifest error, and such agency being solely Lender shall treat each person whose name is recorded in the Participant Register as the owner of such Loan or other obligation hereunder as the owner thereof for tax purposes), shall maintain at such Lender’s Lending Office a register for all purposes of this Agreement notwithstanding any notice to the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participantcontrary. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement the Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreementthe Loan 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 or other modification described in subsections clause (ai), (bii) or (ciii) of the first proviso to Section 10.01 10.02(b) that affects such Participant. Subject to subsection paragraph (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 Section 2.15 (subject to the requirements of that Section) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.14 as though it were a Lender.
Appears in 2 contracts
Samples: Loan Agreement (Mattress Firm Holding Corp.), Loan Agreement (Mattress Firm Holding Corp.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) Subsidiaries (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation indemnity under Section 10.04(c) without regard to the existence of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participantany participation. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this SectionSection (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (Lowes Companies Inc), Credit Agreement (Lowes Companies Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Borrowers or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender person or the Parent Borrower or any of the Parent Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Credit Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Swingline Loans) owing to it); provided that (i) such Lender’s obligations under this Credit Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the Administrative AgentAgents, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Credit Agreement. Each Lender, acting solely for this purpose as an a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes)Borrowers, shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, such Participants and the amount rights, interests or obligations of such Participants in any Obligation, in any Commitment and in any right to receive any principal, interest and other payments thereunder (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error and the Borrowers 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 Credit Agreement notwithstanding any notice to the contrary; provided that no Lender shall have the obligation to disclose all or a portion of the participation sold Participant Register (including the identity of the Participant or any information relating to a Participant’s interest in any Loans or other obligations under any Credit Document) to any Person except to the extent that such Participant by such Lender and disclosure is necessary in connection with a Tax audit or other proceeding to establish that any loans are in registered form for U.S. federal income Tax purposes under Section 5f.103-1(c) of the related interest amounts owing to such ParticipantUnited States Treasury Regulations. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Credit Agreement and to approve any amendment, modification or waiver of any provision of this Credit Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections Section 11.01(a)(iv) or (av) or, to the extent the Participant is affected thereby, Section 11.01(b)(i), (bii) or (c) of the first proviso to Section 10.01 that affects such Participantiii). Subject to subsection (e) of this SectionSection 11.06, the Borrower agrees that each Participant (i) shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations of such Sections including the requirements under Section 3.01(e) (it being understood that the documentation required under Section 3.01(e) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this SectionSection 11.06 and (ii) shall be subject to Sections 3.06 and 11.13(a) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section 11.06. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 11.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 2.12 as though it were a Lender.
Appears in 2 contracts
Samples: Credit Agreement (Live Nation Entertainment, Inc.), Credit Agreement (Live Nation Entertainment, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, an Excluded Party, a Defaulting Lender or the Parent or Borrower or any of the Borrower’s their Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or and Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(d) without regard to the existence of any participation. Each LenderLender that sells a participation shall, acting solely for this purpose as an agent of the Borrower Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and such agency being solely for tax purposesstated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”), ; provided that no Lender shall maintain at such Lender’s Lending Office a register for the recordation have any obligation to disclose all or any portion of the names and addresses Participant Register (including the identity of each any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its Participantsother obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the amount of the participation sold to such Participant by such Lender and shall treat each Person whose name is recorded in the related interest amounts owing Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to such Participantthe contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 11.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this SectionSection (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation); provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 11.13 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 3.01 or 3.04, with respect to any participation than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. 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 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 11.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (STAG Industrial, Inc.), Credit Agreement (STAG Industrial, Inc.)
Participations. Any Lender may with the prior written consent of Administrative Agent and Borrower (such consent not to be unreasonably withheld, conditioned or delayed) at any time, without the consent oftime grant to an Affiliate of such Lender, or notice to, the Borrower one or the Administrative Agent, sell participations to any Person more banks or other financial institutions (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, each a “Participant”) participating interests in all or a the portion of the Loan owing to such Lender’s rights and/or obligations under this Agreement , provided that any participating interest shall be in an amount at least equal to Ten Million and No/100 Dollars (including $10,000,000.00), and provided, further, that if (i) a continuing monetary default then exists, (ii) an Event of Default is continuing, or (iii) written notice of a material non-monetary Default has been provided to Borrower by Administrative Agent, a Lender may assign all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s rights and obligations under this Agreement and the Note without obtaining Borrower’s approval, provided, further, that Borrower shall remain unchangedbe deemed to have consented to any such participation unless Borrower shall have objected thereto by written notice to Administrative Agent within five (5) days after having received notice thereof. Except as otherwise provided in Article IX or as otherwise expressly stated herein, (ii) no Participant shall have any rights or benefits under this Agreement or any other Loan Document. In the event of any such grant by a Lender of a participating interest to a Participant, such Lender shall remain solely responsible to the other parties hereto for the performance of such its obligations hereunder, and (iii) the Borrower, Borrower and the Administrative Agent, the Lenders and the L/C Issuers Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a any Lender sells may grant such a participation participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce this Agreement and the obligations of the Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to any amendment(i) increase such Lender’s share of the Loan, waiver (ii) extend the date fixed for the payment of principal on the Loan or portions thereof owing to such Lender, or (iii) reduce the rate at which interest is payable thereon. An assignment or other modification described in subsections (a), transfer which is not permitted by subsection (b) or (c) below shall be given effect for purposes of this Agreement only to the first proviso to Section 10.01 that affects such Participant. Subject to extent of a participating interest granted in accordance with this subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a Lendera).
Appears in 2 contracts
Samples: Loan Agreement (Excel Trust, L.P.), Loan Agreement (Excel Trust, L.P.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, time sell participations to any Person (other than a natural person, a Defaulting Lender person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations, (iii) the Borrower, the Administrative Agent, each Issuing Bank and the Lenders and the L/C Issuers shall continue to deal solely and directly directly, with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (iv) unless an Event of Default has occurred and is continuing, any such participation must be approved by the Borrower, which approval shall not be unreasonably withheld or delayed. Each LenderNotwithstanding the foregoing, acting solely for this purpose as if an agent Event of Default, other than pursuant to Section 8.01(a) or Section 8.01(f), has occurred and is continuing, no participations will be permitted to be made without the consent of the Borrower Borrower, which consent shall not be unreasonably withheld or delayed, other than to other Lenders, Affiliates of Lenders, Approved Funds, or other commercial banks or regulated financial institutions which are rated by (and such agency being solely for tax purposes)or whose direct or indirect parent are rated by) S&P, shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such ParticipantXxxxx’x or Fitch. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 11.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 11.08 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.11 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Commitments, Loans, Letters of Credit or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any obligations under any Loan Document) 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 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.
Appears in 2 contracts
Samples: Credit and Guarantee Agreement (PayPal Holdings, Inc.), Credit Agreement (Ebay Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender Person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Parent, the Borrower, the Administrative Agent, the Lenders Issuing Banks and the L/C Issuers Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to (w) increase such Lender’s Commitment, (x) extend the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender, (y) reduce the rate at which interest is payable thereon or (z) release any amendment, waiver or other modification described in subsections (aGuarantor from its Obligations under the Guaranty except as contemplated by Section 8.13.(b), (b) or (c) in each case, as applicable to that portion of such Lender’s rights and/or obligations that are subject to the first proviso to Section 10.01 that affects such Participantparticipation. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.10., 3.04 5.1., 5.4. (subject to the requirements and 3.05 limitations therein, including the requirements under Section 3.10.(g) (it being understood that the documentation required under Section 3.10.(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 5.6. as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 5.1. or 3.10., with respect to any participation, than its participating Lender would have been entitled to receive. 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 5.6. with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 13.3. as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 3.3. as though it were a Lender.. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (Sunstone Hotel Investors, Inc.), Credit Agreement (Sunstone Hotel Investors, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, a Defaulting Disqualified Lender or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries; provided that such restriction shall not apply to any Lender on the Closing Date or an Affiliate or Approved Fund of such Lender to the extent such Person becomes an Affiliate of the Borrower or its Subsidiaries after the Closing Date) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that provided, (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Agent and Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold indemnity under Section 10.3(b) with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that provided, such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification described in subsections (a), (bSection 10.5(b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 2.16 and 3.05 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection clause (b) of this Section; provided, such Participant agrees to be subject to the provisions of Section 2.18 and Section 2.19 as if it were an assignee under Section 10.6(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 10.4 as though it were a Lender; provided provided, such Participant agrees to be subject to Section 2.13 2.17 as though it were a Lender. Each Lender that sells a participation pursuant to this Section shall maintain a register on which it records the name and address of each Participant and the principal amounts of each Participant’s participation interest with respect to the Loans and the Commitments (each, a “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of a participation with respect to such Loans or Commitments for all purposes under this Agreement, notwithstanding any notice to the contrary. In maintaining the Participant Register, such Lender shall be acting as the agent of the Borrower solely for purposes of applicable US federal income tax law and undertakes no duty, responsibility or obligation to the Borrower (without limitation, in no event shall such Lender be a fiduciary of the Borrower for any purpose, except that such Lender shall maintain the Participant Register); provided, no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, or its other obligations under this Agreement) except to the extent that such disclosure is necessary to establish in connection with a Tax audit that such Commitment, Loan, or other obligation is in registered form under Section 5f.103(c) of the United States Treasury Regulations or, if different, under Sections 871(h) or 881(c) of the Code. A Participant shall not be entitled to receive any greater payment under Sections 2.16 or 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant (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) unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.17 as though it were a Lender.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Airbnb, Inc.), Credit and Guaranty Agreement (Airbnb, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or Borrower, the Administrative Agent, the Issuing Banks, the Swing Line Lender or any other Person sell participations to any Person (other than to (1) a natural person, a Defaulting Lender or Disqualified Lender, (2) the Borrower or any of the Borrower’s Affiliates or SubsidiariesSubsidiaries or (3) any Person described in the proviso to the definition of “Eligible Assignee”) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations Letters of Credit and/or Swing Line LoansLoans and other Obligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders Agents and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this AgreementAgreement or any other Loan Document; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) the first proviso of the first proviso to paragraph of Section 10.01 11.01 (other than clauses (d) and (g) thereof) that directly and adversely affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.01 (subject to the requirements of Sections 3.01(b), (c), (d) and (e), as applicable (it being understood that the documentation required under such Sections shall be delivered to the participating Lender)), 3.04 and 3.05 (through the applicable Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by lawapplicable Law, each Participant also shall be entitled to the benefits of Section 10.08 11.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.15 as though it were a Lender. To the extent that any participation is purported to be made to a Disqualified Lender (other than a Net Short Lender) or to any Person that was (at the time of such participation) a Net Short Lender on a pro forma basis for such participation, such transaction shall be subject to the applicable provisions of Section 11.27(a) (and the Borrower shall be entitled to seek specific performance in any applicable court of law or equity to enforce this sentence); provided that a Lender shall be entitled to rely conclusively on any Net Short Representation made (or deemed made) to it in any agreement or instrument documenting or otherwise evidencing such Participation and shall have no duty to inquire as to or investigate the accuracy of any Net Short Representation therein or provided in connection with such Participation.
Appears in 2 contracts
Samples: First Lien Credit Agreement (WCG Clinical, Inc.), First Lien Credit Agreement (WCG Clinical, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or any Borrower, the Administrative Agent, the L/C Issuers or the Swing Line Lender, sell participations to any Person (other than a natural personPerson, a Defaulting Lender or the Borrower Company or any of the BorrowerCompany’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation indemnity under Section 10.04(c) without regard to the existence of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participantany participation. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower The Company agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.13 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 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Company’s request and expense, to use reasonable efforts to cooperate with the Company to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary 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 in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Notwithstanding anything in the Loan Documents to the contrary, 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.
Appears in 2 contracts
Samples: Syndicated Facility Agreement (Aecom), Credit Agreement (Aecom)
Participations. Any Subject to Section 10.1(b)(vi)(A) in the case of participations sold to Affiliated Lenders, any Lender may at any timemay, without the consent of, or notice to, the Borrower any Loan Party or the Administrative Agent, sell participations to any Person one or more Persons (other than a natural person, Person or a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”Disqualified Institution) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it)Agreement; provided that (i) such Lender’s obligations under this Agreement shall remain unchangedunchanged (except to the extent such Lender is required to give Borrower and Administrative Agent an IRS Form W-8IMY in accordance with Section 2.7(b)(iii)), (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Agent and Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver directly affecting (A) an extension of the regularly scheduled date of payment of any portion of the principal amount of or interest on or any fee payable with respect to any Loan allocated to such participation, (B) a reduction of the principal amount of or the rate of interest payable on any Loan allocated to such participation, (C) an increase in the Commitment allocated to such participation, (D) the release of any Lien granted in favor of Administrative Agent with respect to all or substantially all of the Collateral or the release of the guarantees of all or substantially all of the Guarantors, in each case other than in accordance with the terms of the Loan Documents or (E) the definition of “Requisite Lenders” (except for any changes resulting solely from increases or other modification described changes in subsections (a), (b) or (c) the aggregate amount of the first proviso Commitments permitted hereunder or otherwise approved pursuant to Section 10.01 that affects such Participant10.6). Subject to subsection (e) the further provisions of this SectionSection 10.1(c), the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 Section 2.6(d) and 3.05 Section 2.7 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this SectionSection 10.1(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.of
Appears in 2 contracts
Samples: Credit Agreement (EngageSmart, LLC), Credit Agreement (EngageSmart, LLC)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a Disqualified Lender, a natural person, or a Defaulting Lender holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (iA) such Lender’s obligations under this Agreement shall remain unchanged, (iiB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iiiC) the Borrower, the Administrative Agent, the Agent and Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification described in subsections Section 9(b)(i) – (a), (bviii) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (eand stated interest) of this Sectioneach Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the Borrower agrees extent that each 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 entitled 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 benefits contrary. For the avoidance of Sections 3.01doubt, 3.04 and 3.05 to the same extent Administrative Agent (in its capacity as if it were Administrative Agent) shall have no responsibility for maintaining a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a LenderRegister.
Appears in 2 contracts
Samples: Credit Agreement (New Atlas HoldCo Inc.), Credit Agreement (Atlas Energy Solutions Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line LoansObligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers Issuer and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation indemnity under Section 10.04(c) without regard to the existence of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participantany participations. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this SectionSection provided that the Participant has delivered to the Borrower the tax documentation required under Section 3.01(e)(ii). To the extent permitted by applicable Law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.12 as though it were a Lender. 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 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an 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 (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a Defaulting Lender natural Person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations, (iii) the Borrower, the Administrative Agent, the Issuing Banks and Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by (iv) such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain retains the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; , provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification described in subsections (aSection 9.02(b) which requires the consent of all Lenders. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 9.03(b) with respect to any payments made by such Lender to its Participant(s), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.13, 3.04 2.14 and 3.05 2.15 (subject to the requirements and limitations therein) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.18 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.14 or 2.15, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. 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 2.18(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 9.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.12 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (Atlas Corp.), Credit Agreement (Seaspan CORP)
Participations. Any Lender may at any time, without the consent of, or notice to, the any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person, a Defaulting Lender Lender, or the Borrower Company or any of the BorrowerCompany’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the Administrative Agent, and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.05(b) without regard to the existence of any participation. Each LenderLender that sells a participation shall, acting solely for this purpose as an a non-fiduciary agent of the Borrower Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and such agency being solely for tax purposesstated interest) of each Participant’s interest in the Obligations under the Loan Documents (the “Participant Register”), ; provided that no Lender shall maintain at such Lender’s Lending Office a register for the recordation have any obligation to disclose all or any portion of the names and addresses Participant Register to any Person (including the identity of each any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its Participantsother obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the amount of the participation sold to such Participant by such Lender and shall treat each Person whose name is recorded in the related interest amounts owing Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to such Participantthe contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 11.01 that affects such Participant. Subject to subsection (e) of this Section, the each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 11.09 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.11 as though it were a Lender.
Appears in 2 contracts
Samples: Credit Agreement (Danaher Corp /De/), Credit Agreement (Danaher Corp /De/)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries, or any Disqualified Institution) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Revolving Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, Agent and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment(w) if such Lender is a Revolving Lender, waiver or other modification described in subsections (a)increase such Lender’s Revolving Commitment, (bx) extend the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender or (cy) of reduce the first proviso to Section 10.01 that affects such Participantrate at which interest is payable thereon. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01Section 3.10, 3.04 Section 4.1, Section 4.4 (subject to the requirements, obligations, and 3.05 limitations therein, including the requirements under Section 3.10(f) (it being understood that the documentation required under Section 3.10(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 4.6 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 4.1 or Section 3.10, with respect to any participation, than its participating Lender would have been entitled to receive unless the sale of the participation to such Participant is made with the Borrower’s prior written consent (not to be unreasonably withheld or delayed (it being agreed, however, that if the sale of a participation to a proposed Participant would, in the Borrower’s reasonable discretion, be reasonably likely to result in such proposed Participant qualifying as an Affected Lender if such proposed Participant were a Lender, the Borrower’s withholding of consent to such participation shall be deemed reasonable)). 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 4.6 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 13.3 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 3.3 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that (x) such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or (y) a Participant is not a Disqualified Institution. 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.
Appears in 2 contracts
Samples: Subordinated Credit Agreement (Rouse Properties, Inc.), Subordinated Credit Agreement (Rouse Properties, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a Defaulting Lender natural Person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Revolving Credit Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Banks and the L/C Issuers Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderExcept as otherwise provided in Section 13.4 or as otherwise expressly stated herein, acting solely for no Participant shall have any rights or benefits under this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such ParticipantAgreement or any other Loan Document. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a)w) increase such Lender’s Revolving Credit Commitment, (bx) extend the date on which any scheduled payment of principal on the Loans or portions thereof owing to such Lender is to be made, (y) reduce the rate at which interest is payable thereon (other than a waiver of default interest and changes in calculation of the Leverage Ratio that may indirectly affect pricing) or (cz) release all or substantially all of the first proviso Collateral (except as contemplated by Sections 8.14 or 8.15), all or substantially all of the Covenant Relief Collateral (except as contemplated by Section 8.16) or all or substantially all of the Guarantors from their obligations under the Guaranty (except as contemplated by Sections 8.14 or 8.15) or release the Parent Guarantor from its obligations under the Guaranty, in each case, as applicable to Section 10.01 that affects portion of such ParticipantLender’s rights and/or obligations that are subject to the participation. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.10, 3.04 5.1, 5.4 (subject to the requirements and 3.05 limitations therein, including the requirements under Section 3.10(g) (it being understood that the documentation required under Section 3.10(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 3.9(h) or 5.6 as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 5.1 or 3.10, with respect to any participation, than its participating Lender would have been entitled to receive. 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 3.9(h) or 5.6 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 13.4 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 3.3 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (RLJ Lodging Trust), Credit Agreement (RLJ Lodging Trust)
Participations. Any Lender may at any time, time after the Effective Date without the consent of, or notice to, the Borrower Borrowers or the any Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or Lender, the Borrower Parent, any Borrower, or any of the BorrowerParent’s other Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment Term Commitment, Revolving Commitment, and/or the Loans (including such Lender’s participations in L/C and Reimbursement Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the each Administrative Agent, the Lenders Lenders, and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderLender that sells a participation shall, acting solely for this purpose as an a non-fiduciary agent of the Borrower Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and such agency being solely for tax purposesstated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”), ; provided that no Lender shall maintain at such Lender’s Lending Office a register for the recordation have any obligation to disclose all or any portion of the names Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Treasury Regulations Section 5f.103-1(c) and addresses of each of its ParticipantsProposed Treasury Regulations Section 1.163-5(b) (or any amended or successor version). The entries in the Participant Register shall be conclusive absent manifest error, and the amount of the participation sold to such Participant by such Lender and shall treat each Person whose name is recorded in the related interest amounts owing Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to such Participantthe contrary. For the avoidance of doubt, no Administrative Agent (in its capacity as Administrative Agent) shall have any responsibility for maintaining a Participant Register. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver which would (x) reduce the amount, or other modification described in subsections postpone any date fixed for any amount (a)whether of principal, interest or fees) payable to such Participant under the Loan Documents, to which such Participant would otherwise be entitled under such participation, (by) increase the commitment applicable to such Participant or (cz) result in the release of all or substantially all of the first proviso to Section 10.01 that affects such ParticipantCollateral or the release of all or substantially all of the Guarantees. Subject to subsection clause (e) of this Sectionbelow, the each Borrower jointly and severally agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 Section 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection clause (b) of this Sectionabove. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 11.6 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 11.7 as though it were a Lender.
Appears in 2 contracts
Samples: Credit Agreement (McDermott International Inc), Credit Agreement (McDermott International Inc)
Participations. Any Each Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (one or more Lenders or other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) entities in all or a portion of such Lender’s rights and/or and obligations under this Agreement (including all or a portion of its Commitment and/or and the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it)other Loan Documents; provided that (a) any such sale or participation shall not affect the rights and duties of the selling Lender hereunder, (b) such participation shall not entitle such participant to any rights or privileges under this Agreement or any Loan Documents, including without limitation, rights granted to the Lenders under §§4.8, 4.9, 4.10 and 13, (c) such participation shall not entitle the participant to the right to approve waivers, amendments or modifications, (d) such participant shall have no direct rights against the Borrower, (e) such sale is effected in accordance with all Applicable Laws, and (f) such participant shall not be a Person controlling, controlled by or under common control with, or which is not otherwise free from influence or control by the Borrower and/or any Guarantor and shall not be a Defaulting Lender or an Affiliate of a Defaulting Lender; provided, however, such Lender may agree with the participant that it will not, without the consent of the participant, agree to (i) increase, or extend the term or extend the time or waive any requirement for the reduction or termination of, such Lender’s obligations under this Agreement shall remain unchangedCommitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or portions thereof owing to such Lender shall remain solely responsible (other than pursuant to an extension of the other parties hereto for the performance of such obligations and Maturity Date pursuant to §2.12), (iii) reduce the Borroweramount of any such payment of principal, (iv) reduce the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations rate at which interest is payable thereon or (v) release any Guarantor or any material Collateral (except as otherwise permitted under this Agreement). Each LenderLender that sells a participation shall, acting solely for this purpose as an agent of the Borrower Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and such agency being solely for tax purposesstated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”), ; provided that no Lender shall maintain at such Lender’s Lending Office a register for the recordation have any obligation to disclose all or any portion of the names and addresses Participant Register (including the identity of each any participant or any information relating to a participant’s interest in any Commitments, Loans, or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, or other obligation is in registered form under Section 5f.103-1(c) of its Participantsthe United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain treat each Person whose name is recorded in the sole right to enforce Participant Register as the owner of such participation for all purposes of this Agreement and notwithstanding any notice to approve any amendment, modification or waiver the contrary. For the avoidance of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Sectiondoubt, the Borrower agrees that each Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a LenderRegister.
Appears in 2 contracts
Samples: Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or Borrower, the Administrative Agent, the Swingline Lender or the L/C Issuer, sell participations to any Person (other than a natural person, a Defaulting Lender Lender, an Ineligible Institution or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in Swingline Obligations and L/C Obligations and/or Swing Line LoansObligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations, (iii) the Borrower, the Administrative Agent, the Lenders Lenders, the Swingline Lender and the L/C Issuers Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to (iv) such Participant must agree to be bound by such Lender and the related interest amounts owing to such ParticipantSection 10.7. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 10.1 that affects delays or reduces any payment to such Participant. Subject to subsection (eg) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.1, 3.04 3.4 and 3.05 3.5 (subject to the requirements and limitations therein) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (bSection 10.6(b); provided such Participant agrees to be subject to the provisions of Section 3.6 as if it were an assignee under Section 10.6(b) of this Sectionand agrees to deliver the documentation required under Section 3.1(e). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 10.8 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.12 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the 134 “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Revolving Credit Agreement (PBF Energy Inc.), Revolving Credit Agreement (PBF Logistics LP)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or Borrower, the Administrative Agent, Issuing Bank or Swingline Lender, sell participations to any Person (other than a natural person, a Defaulting Lender person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Bank, and the L/C Issuers Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a)w) increase such Lender’s Commitment, (bx) extend the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender, (y) reduce the rate at which interest is payable thereon or (cz) release any Guarantor from its Obligations under the Guaranty (if applicable) other than in accordance with Section 8.14 or any other release in accordance with the terms hereof, in each case, as applicable to that portion of such Lender’s rights and/or obligations that are subject to the first proviso to Section 10.01 that affects such Participantparticipation. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.10, 3.04 5.1 and 3.05 5.4 (subject to the requirements and limitations therein, including the requirements under Section 3.10(g) (it being understood that the documentation required under Section 3.10(g) shall be delivered to the participating Lender )) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 5.6 and 5.7 as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 5.1 or 3.10, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent either such entitlement to receive a greater payment results from a Regulatory Change that occurs after the Participant acquired the applicable participation or the sale of the participation to such Participant is made with the Borrower’s prior written consent. 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 5.6 with respect to any Participant. To the extent permitted by lawApplicable Law, each Participant also shall be entitled to the benefits of Section 10.08 13.4 as though it were a Lender; , provided that such Participant agrees to be subject to Section 2.13 3.3 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts of each Participant’s interest in the Commitments, 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 Commitment, Loan or other obligation 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 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 interest in the Loans or other obligations under the Loan Documents as the owner thereof for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as administrative agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (Hudson Pacific Properties, L.P.), Credit Agreement (Hudson Pacific Properties, L.P.)
Participations. Any Lender may at any time, without the consent of, or notice to, the any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower Company or any of the BorrowerCompany’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s Alternative Currency Risk Participations and its participations in L/C Obligations C-BA Obligations, Swing Line Loans and/or Swing Line Euro Tranche Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations, (iii) the BorrowerLoan Parties, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, Agreement and the amount other Loan Documents and (iv) the granting of such participation shall not require that any cost or expense of any kind at any time be borne by the participation sold Company or any Subsidiary thereof and shall not result in any increase in any payment of any kind to be made by the Company or any Subsidiary under any Loan Document unless the Company expressly agrees in writing to bear such Participant by such Lender and cost, expense or increase in payment in connection with the related interest amounts owing to such Participantrelevant participation. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this AgreementAgreement and the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections clause (a), (b) or (cii) of the first proviso to Section 10.01 subsection 11.1(a) that directly affects such Participant (it being understood that (i) any vote to rescind any acceleration made pursuant to Section 9 of amounts owing with respect to the Loans and other Obligations and (ii) any modifications of the provisions relating to amounts, timing or application of prepayments of Loans and other Obligations shall not require the approval of such Participant). Subject to subsection (e) of this Section11.6(e), the each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01subsections 4.8, 3.04 4.9 and 3.05 4.10 (subject to the requirements of those sections, including timely delivery of forms pursuant to subsection 4.9) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection 11.6(b). Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (band stated interest) of this Section. To each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent permitted by lawthat such disclosure is necessary to establish that such commitment, each loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant also Register shall be entitled conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the benefits contrary. For the avoidance of Section 10.08 doubt, the Administrative Agent (in its capacity as though it were Administrative Agent) shall have no responsibility for maintaining a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a LenderRegister.
Appears in 2 contracts
Samples: Credit Agreement (Graphic Packaging International, LLC), Credit Agreement (Graphic Packaging International, LLC)
Participations. Any (i) Each Lender may shall have the right at any time, without the consent of, time to sell one or notice to, the Borrower or the Administrative Agent, sell more participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) Eligible Assignee in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion any part of its Commitment and/or the Commitments or Loans (including such Lender’s participations or in L/C Obligations and/or Swing Line Loans) owing to it)any other Obligation; provided that (iA) such Lender’s obligations under this Agreement shall remain unchanged, (iiB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iiiC) the BorrowerCredit Parties, the Administrative Agent, the Lenders Collateral Agent, the Issuing Banks and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderLender that sells a participation pursuant to this Section 10.6(g) shall, acting solely for this purpose United States federal income tax purposes as an a non-fiduciary agent of the Borrower Borrower, maintain a register on which it records the name and address of each participant to which it has sold a participation and the principal amounts (and stated interest) of each such agency being solely for tax purposesparticipant’s interest in the Commitments or Loans or other rights and obligations of such Lender under this Agreement or any other Credit Document (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans or other rights and obligations under any Credit Document), shall maintain at except to the extent that such Lender’s Lending Office a register for the recordation disclosure is necessary to establish that such Commitment, Loan or other right or obligation is in registered form under Section 5f.103-1(c) of the names United States Treasury Regulations. Unless otherwise required by the IRS, any disclosure required by the foregoing sentence shall be made by the relevant Lender directly and addresses of each of its Participantssolely to the IRS. The entries in the Participant Register shall be conclusive absent manifest error, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain treat each Person whose name is recorded in the sole right to enforce this Agreement and to approve any amendment, modification or waiver Participant Register as the owner of any provision of such participation for all purposes under this Agreement; provided that such agreement or instrument may provide that such Lender will not, without notwithstanding any notice to the consent contrary. For the avoidance of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Sectiondoubt, the Borrower agrees that each Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a LenderRegister.
Appears in 2 contracts
Samples: Counterpart Agreement (Fusion Connect, Inc.), Pledge and Security Agreement (Fusion Connect, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender Person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Issuing Bank and Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold indemnity under Section 2.18(c) with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver decreasing any fees payable to such Participant hereunder or the amount of principal of or the rate at which interest is payable on the Loans in which such Participant has an interest, extending any scheduled principal payment date or date fixed for the payment of interest on the Loans in which such Participant has an interest, increasing or extending the Commitments in which such Participant has an interest or releasing any Subsidiary Guarantor (other modification described than in subsections (a), (bconnection with the sale of such Subsidiary Guarantor in a transaction permitted by Section 6.04) or (c) all or substantially all of the first proviso to Section 10.01 that affects such ParticipantCollateral. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 2.13(a) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this SectionSection 9.03; provided that such Participant agrees to be subject to the provisions of Sections 2.13(b) and 2.13(c) as if it were an assignee under paragraph (b) of this Section 9.03. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 9.05 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.17 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Reliant Software, Inc.), Revolving Credit Agreement (Community Choice Financial Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Borrowers or the Administrative Agent, sell participations to any Person and any such participant may sell sub-participations to any Person (other than a natural personPerson or a trust for the benefit of a natural Person, a Defaulting Lender or the any Borrower or any of the Borrower’s Borrowers’ Affiliates or Subsidiaries) (eacheach such Person, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to itapplicable Term Loan); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the Administrative Agent, Agent and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation indemnity under Section 10.04(c) without regard to the existence of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participantany participation. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide (A) that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant and (B) solely in the case of a bank that is a member of the Farm Credit System that (x) has purchased a participation interest in the minimum amount of $5,000,000 in such Xxxxxx’s Commitment on or after the Restatement Date and (y) is, by written notice (“Voting Participant Notification”), designated by such Lender to the Administrative Borrower and the Administrative Agent as being entitled to be accorded the rights of a Voting Participant hereunder (any bank that is a member of the Farm Credit System so designated being called a “Voting Participant”), that such Voting Participant shall be entitled to vote (and the voting rights of such Lender shall be correspondingly reduced), on a Dollar for Dollar basis, as if such Voting Participant were a Lender on any matter requiring or allowing a Lender to provide or withhold its consent or to otherwise vote on any proposed action. To be effective, each Voting Participant Notification shall, with respect to such Voting Participant, (1) state the full legal name of such Voting Participant, as well as all contact information required of a Lender as set forth in Section 10.02(a)(ii) and (2) state the Dollar amount of participation interest purchased. Notwithstanding the above, the Administrative Agent acknowledges the participations noted on Schedule 2.01 as of the Restatement Date and no Voting Participant Notification shall be required with respect to such participations. Subject to subsection (e) of this Section, the Borrower agrees Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 3.01 and 3.05 3.02 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.05 and 10.13 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 3.01 or 3.02, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 3.05 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.11 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an 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 Term Loans or other obligations under the Loan Documents (the “Participant Register”); provided that, except with respect to a Voting Participant, 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 Commitments, Term 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, Term 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.
Appears in 2 contracts
Samples: Term Loan Agreement (Potlatchdeltic Corp), Term Loan Agreement (Potlatchdeltic Corp)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, or a holding company, investment vehicle or trust for, or owned and operating for the primary benefit of a natural Person, a Defaulting Lender or the Borrower Lender, any Loan Party or any of the BorrowerLoan Party’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Bank and the L/C Issuers Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a)w) increase such Lender’s Commitment, (bx) extend the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender, or (cy) of reduce the first proviso to Section 10.01 that affects such Participantrate at which interest is payable thereon. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.10 and 5.1 (subject to the requirements and limitations therein, 3.04 and 3.05 including the requirements under Section 3.10(g) (it being understood that the documentation required under Section 3.10(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Sections 5.1 or 3.10, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Regulatory Change that occurs after the Participant acquired the applicable participation. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 13.4 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 3.3 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as the Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (Smith Douglas Homes Corp.), Credit Agreement (Smith Douglas Homes Corp.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender person or the Borrower or any of the Borrower’s 's Affiliates or Subsidiaries) (each, a “"Participant”") in all or a portion of such Lender’s 's rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders Agent and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver which would (1) extend any date upon which a scheduled mandatory and automatic reduction in any Commitment in which such Participant is participating is scheduled to be made, (2) extend any date upon which a reimbursement obligation in respect of a Letter of Credit or other modification described Unpaid Drawing in subsections which such Participant is participating is scheduled to be made, (a3) extend the final scheduled maturity of the Loans in which such Participant is participating (it being understood that any waiver of the making of, or the application of, any mandatory prepayment to such Loans shall not constitute an extension of the final maturity date thereof), (b4) reduce the rate or extend the time of payment of interest or Fees on any such Loan or Commitment (except in connection with a waiver of the applicability of any post-default increase in interest rates), (5) reduce the principal amount of any such outstanding Loan, (6) increase such Participant's participating interest in any Commitment over the amount thereof then in effect, (7) release any Credit Party from its obligations under the Subsidiary Guaranty, except in accordance with the provisions of the Credit Documents, (8) release all or substantially all of the Collateral, in each case except in accordance with the provisions of the Credit Documents, or (c9) consent to the assignment or transfer by the Borrower of the first proviso to Section 10.01 that affects such Participantany of its rights and obligations under this Agreement. Subject to subsection paragraph (e) of this Sectionsection, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01sections 2.9, 3.04 2.10, 3.5 and 3.05 5.4 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Sectionsection. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 section 12.2 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 as though it were a Lender12.6.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Om Group Inc), Credit Agreement (Om Group Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Borrowers or the Administrative Agent, in accordance with applicable law, sell participations to any Person (other than a natural person, a Defaulting Lender person or the Borrower Company or any of the BorrowerCompany’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) Advances owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerCompany, the Administrative Agent, the Lenders Issuing Bank, Swing Line Lender, and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification described in subsections (a), (b) or (c) Section 9.3 that directly affects such Participant and could not be affected by a vote of the first proviso to Section 10.01 that affects such ParticipantRequired Lenders. Subject to subsection paragraph (e) of this Section, the Borrower agrees Borrowers agree that each Participant shall be entitled to the benefits of (and shall have the related obligations under) Sections 3.012.16, 3.04 2.17 and 3.05 2.18 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 9.15 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 8.4 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an 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 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 to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and each Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (Sensient Technologies Corp), Credit Agreement (Sensient Technologies Corp)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender Person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, Agent and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation indemnity under Section 9.06(c) without regard to the existence of the names and addresses of each of its Participantsany participations. PORTIONS OF THIS EXHIBIT HAVE BEEN REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such ParticipantAS AMENDED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED, MARKED WITH “[*]” AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 9.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.0110.01 and 10.02 (subject to the requirements and limitations therein, 3.04 and 3.05 including the requirements under Section 10.01(e) (it being understood that the documentation required under Section 10.01(e) shall be delivered to the Lender who sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 10.03 and 10.04 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 10.01 or 10.02, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. 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 10.03 with respect to any Participant. To the extent permitted by lawApplicable Law, each Participant also shall be entitled to the benefits of Section 10.08 3.03 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.07 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Loan and Security Agreement (Great Lakes Dredge & Dock CORP), Loan and Security Agreement (Great Lakes Dredge & Dock CORP)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Loan Parties or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender person or the Borrower Loan Parties or any of the Borrower’s Loan Parties’ Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerLoan Parties, the Administrative Agent, the Lenders and the L/C Issuers Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and (iv) such Lender shall continue to have the amount of the participation sold sole right to enforce its rights under this Agreement. Any Participant shall agree in writing to comply with all confidentiality obligations set forth in Section 10.07 as if such Participant by such was a Lender and the related interest amounts owing to such Participanthereunder. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees Loan Parties agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection Section (b) of this Section). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender, acting for this purpose as an agent of the Loan Parties, shall maintain at its offices a record of each agreement or instrument effecting any participation and a register for the recordation of the names and addresses of its Participants and their rights with respect to principal amounts and other Obligations from time to time (each a “Participation Register”). The entries in each Participation Register shall be conclusive absent manifest error and the Loan Parties, the Administrative Agent, the L/C Issuer and the Lenders may treat each Person whose name is recorded in a Participant Register as a Participant for all purposes of this Agreement (including, for the avoidance of doubt, for purposes of entitlement to benefits under Section 3.01, Section 3.04, Section 3.05 and Section 10.08“). The Participation Register shall be available for inspection by the Lead Borrower, the L/C Issuer and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 2 contracts
Samples: Credit Agreement (Pacific Sunwear of California Inc), Credit Agreement (Pacific Sunwear of California Inc)
Participations. Any Lender may (subject to compliance with the provisions of this Section 12.11) at any time, without the consent of, time grant to one or notice to, the Borrower more banks or the Administrative Agent, sell participations to any Person other institutions (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, each a “Participant”) a participating interest in its Commitment or any or all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or Principal Obligations. In the Loans (including event of any such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing grant by a Lender of a participating interest to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchangeda Participant, (ii) such Lender shall remain solely responsible retain the sole right and responsibility to enforce and exercise any rights and perform its obligations hereunder and under the other parties hereto for Loan Documents, and the performance of such obligations and (iii) the BorrowerCredit Parties, the Administrative Agent, the Lenders Agent and the L/C Issuers Letter of Credit Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Credit Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a any Lender sells may grant such a participation participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce this Agreement and the Obligations including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Credit Agreement; provided that such agreement . The voting rights of each Participant shall be limited to (i) reductions or instrument may provide that such Lender will notincreases in the amount, without or altering the consent term, of the Participant, Commitment of such Participant and (ii) changes to the Maturity Date or interest rate. The Credit Parties agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01Section 4 and Section 5.3 with respect to its participating interest, 3.04 and 3.05 to the same extent that such Participant complies with the requirements of such Sections (it being understood that the documentation required under Section 4.1(f) shall be delivered to the granting Lender), as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided (i) that in no event shall any Borrower be obligated to pay to such Participant agrees amounts greater than those such Borrower would have been required to pay to the granting Lender in the absence of such participation, except to the extent that such requirement to pay such greater amounts results from a Change in Law occurring after the date of the participation, and (ii) it shall be subject reasonable for the Borrowers to decline consent to a participation to a Lender which does not agree to waive its rights under Section 2.13 5.3 of this Credit Agreement. An assignment or other transfer which is not permitted by subsection (c) below shall be given effect for purposes of this Credit Agreement only to the extent of a participating interest which is permitted in accordance with this subsection (b). Each Lender that sells a participating interest in any Loan, Commitment or other interest to a Participant shall, as though a non-fiduciary agent of the Borrower, maintain a register on which it were shall record the name and address and the principal amount (and stated interest) of the participating interest of each Participant entitled to receive payments in respect of such participating interests (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 LenderParticipant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Credit Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II), Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or Borrower, the Administrative Agent, the Swingline Lender or the L/C Issuer, sell participations to any Person (other than a natural person, a Defaulting Lender Lender, an Ineligible Institution or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in Swingline Obligations and L/C Obligations and/or Swing Line LoansObligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations, (iii) the Borrower, the Administrative Agent, the Lenders Lenders, the Swingline Lender and the L/C Issuers Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to (iv) such Participant must agree to be bound by such Lender and the related interest amounts owing to such ParticipantSection 10.07. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects delays or reduces any payment to such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations therein) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection Section 10.06(b); provided such Participant agrees to be subject to the provisions of Section 3.06 as if it were an assignee under paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.12 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (Western Refining Logistics, LP), Credit Agreement (Western Refining Logistics, LP)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a Defaulting Lender natural Person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Issuing Banks and Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold indemnity under Section 9.03(b) with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that that, such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.17, 3.04 2.18 and 3.05 2.19 (subject to the requirements and limitations therein, including the requirements under Section 2.19(g) (it being understood that the documentation required under Section 2.19(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.22 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.18 or 2.19, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. 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 2.22(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 9.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.16 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (Power Solutions International, Inc.), Credit Agreement (Power Solutions International, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or any Borrower, the Administrative Agent, sell participations to any Person (other than a natural personPerson or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural Persons, a Defaulting Lender Lender, or the Borrower Company or any of the BorrowerCompany’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the Administrative Agent, and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.05(b) without regard to the existence of any participation. Each LenderLender that sells a participation shall, acting solely for this purpose as an a non-fiduciary agent of any Borrower, maintain a register on which it enters the Borrower name and address of each Participant and the principal amounts (and such agency being solely for tax purposesstated interest) of each Participant’s interest in the Obligations under the Loan Documents (the “Participant Register”), ; provided that no Lender shall maintain at such Lender’s Lending Office a register for the recordation have any obligation to disclose all or any portion of the names and addresses Participant Register to any Person (including the identity of each any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its Participantsother obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the amount of the participation sold to such Participant by such Lender and shall treat each Person whose name is recorded in the related interest amounts owing Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to such Participantthe contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 11.01 that affects such Participant. Subject to subsection (e) of this Section, the each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 11.09 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.11 as though it were a Lender.
Appears in 2 contracts
Samples: Credit Agreement (Danaher Corp /De/), Credit Agreement (Danaher Corp /De/)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell grant participations in its extensions of credit hereunder to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) other lending institution (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); , provided that (i) no such Lender’s obligations under this Agreement participation shall remain unchangedbe for an amount of less than $5,000,000, (ii) such no Participant shall thereby acquire any direct rights under this Agreement, (iii) no Participant shall be granted any right to consent to any amendment, except to the extent any of the same pertain to (1) reducing the aggregate principal amount of, or interest rate on, or fees applicable to, any Loan or (2) extending the final stated maturity of any Loan or the stated maturity of any portion of any payment of principal of, or interest or fees applicable to, any of the Loans; provided, that the rights described in this subclause (2) shall not be deemed to include the right to consent to any amendment with respect to or which has the effect of requiring any mandatory prepayment of any portion of any Loan or any amendment or waiver of any Default or Event of Default, (iv) no sale of a participation in extensions of credit shall in any manner relieve the originating Lender of its obligations hereunder, (v) the originating Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, (vi) Co-Borrowers and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers Agent shall continue to deal solely and directly with such the originating Lender in connection with such the originating Lender’s rights and obligations under this Agreement. Each LenderAgreement and the other Loan Documents, acting solely for this purpose as (vii) in no event shall any financial institution purchasing the participation grant a participation in its participation interest in the Loans without the prior written consent of Agent, and, in the absence of a Default or an agent Event of the Borrower (Default, Borrower, on its own behalf and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses on behalf of each other Co-Borrower, which consents shall not unreasonably be withheld and (viii) all amounts payable by Co-Borrowers hereunder shall be determined as if the originating Lender had not sold any such participation. Notwithstanding the sale by any Lender of its Participantsany participation hereunder, no Participant shall be deemed to be or have the rights and obligations of a Lender hereunder except that (a) any participant shall have a right of setoff under Section 10.4 as if it were such Lender and the amount of the its participation sold were owing directly to such Participant participant by such Lender the Co-Borrowers and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects each such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.8, 3.04 3.9 and 3.05 12.2 with respect to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a Lenderparticipation.
Appears in 2 contracts
Samples: Loan and Security Agreement (Pw Eagle Inc), Loan and Security Agreement (Pw Eagle Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (iA) such Lender’s obligations under this Agreement shall remain unchanged, (iiB) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iiiC) the Borrower, the Administrative Agent, Agent and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender; provided, acting solely for this purpose further, that any bank that is a Farm Credit Lender that (a) has purchased a participation from any Lender that is a Farm Credit Lender in the minimum amount of $5,000,000 on or after the Closing Date, (b) is, by written notice to the Borrower and the Administrative Agent (a “Voting Participant Notification”), designated by such Lender as an agent being entitled to be accorded the rights of a voting participant hereunder (any such bank so designated, a “Voting Participant”) and (c) received the prior written consent of the Borrower and the Administrative Agent to become a Voting Participant (such consent to be required only to the extent and under the circumstances it would be required if such agency being solely for tax purposesVoting Participant were to become a Lender pursuant to an assignment in accordance with Section 11.06(b)(iii)), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, be entitled to vote (and the voting rights of such Lender from whom it purchased such participation shall be correspondingly reduced), on a dollar for dollar basis, as if such Voting Participant were a Lender under the applicable Loans with a Commitment and/or Loans (as applicable) in an amount equal to the U.S. Dollar amount of the participation sold to such Participant by purchased, on any matter requiring or allowing such Lender from whom it purchased such participation, in its capacity as a Lender, to provide or withhold its consent, or to otherwise vote on any proposed action. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (i) state the full name of such Voting Participant, as well as all contact information required of an assignee as set forth in Exhibit E-2 hereto and (ii) state the dollar amount and the related interest amounts owing applicable Loans of the participation purchased. The Borrower and the Administrative Agent shall be entitled to such Participantconclusively rely on information contained in notices delivered pursuant to this paragraph. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections clause (a), (b) or (cii) of the first proviso to Section 10.01 11.01 requiring the consent of each Lender affected thereby and that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided, further that such agreement or instrument shall provide that the Participant understands that the value of the loan asset (including Participant’s pro rata share thereof) may increase or decrease based on fluctuations in currency exchange rates and agrees that any losses (gains) experienced as a result of changes in currency exchange rates shall be shared by such Participant in accordance with the Participant’s pro rata share. To the extent permitted by law, each Participant shall also shall be entitled to the benefits of Section 10.08 11.08 as though it were a Lender; , provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an non-fiduciary agent of the Borrower (such agency being solely for tax purposes), maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Bridge Facility Agreement (Post Holdings, Inc.), Bridge Facility Agreement (Bellring Brands, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or Borrower, the Administrative Agent, the Swingline Lender or the L/C Issuer, sell participations to any Person (other than a natural person, a Defaulting Lender Lender, an Ineligible Institution or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in Swingline Obligations and L/C Obligations and/or Swing Line LoansObligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations, (iii) the Borrower, the Administrative Agent, the Lenders Lenders, the Swingline Lender and the L/C Issuers Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to (iv) such Participant must agree to be bound by such Lender and the related interest amounts owing to such ParticipantSection 10.7. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 10.1 that affects delays or reduces any payment to such Participant. Subject to subsection (eg) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.1, 3.04 3.4 and 3.05 3.5 (subject to the requirements and limitations therein) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (bSection 10.6(b); provided such Participant agrees to be subject to the provisions of Section 3.6 as if it were an assignee under Section 10.6(b) of this Sectionand agrees to deliver the documentation required under Section 3.1(e). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 10.8 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.12 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Revolving Credit Agreement (PBF Logistics LP), Revolving Credit Agreement (PBF Energy Co LLC)
Participations. Any Lender may at any timeEach Buyer reserves the right, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates Seller, to sell to one or Subsidiaries) more banks or other entities (each, a “Participant”) ), participations in all or a portion any part of such LenderBuyer’s rights and/or obligations Commitment and Pro Rata ownership share of the Purchased Loans or to pledge, collaterally assign or grant a security interest in any or all of its interests under this Agreement (including all and in the Purchased Loans to any Federal Reserve Bank or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it)any other Person; provided that (i) no such Lender’s pledge, participation, collateral assignment or grant of a security interest shall release a Buyer from any of its obligations hereunder or substitute any such participant, pledgee or assignee for such Buyer as a party hereto. Participants shall have no rights under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the Repurchase Documents other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s than certain voting rights and obligations under this Agreementas provided below. Each Lender, acting solely for this purpose as an agent of the Borrower Buyer shall be entitled to obtain (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each on behalf of its Participants, and ) the benefits of this Agreement with respect to all Participants in its Funding Share of Open Transactions outstanding from time to time; provided that the Seller shall not be obligated to pay any amount in excess of the amount of that would be due such Buyer calculated as though no participation had been sold. No Buyer shall sell any participating interest under which the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and have any rights to approve any amendment, modification or waiver of any provision Repurchase Documents, except to the extent such amendment, modification or waiver requires the consent of this Agreementall Buyers under Section 22.3. In those cases (if any) where a Buyer grants rights to any of its Participants to approve amendments, modifications or waivers of any Repurchase Documents pursuant to the immediately preceding sentence, such Buyer must include a voting mechanism as to all such approval rights in the relevant participation agreement(s) whereby a readily-determinable fraction of such Buyer’s portion of the Purchased Loans (whether held by such Buyer or participated) shall control the vote for all of such Buyer’s portion of the Purchased Loans; provided that if no such agreement voting mechanism is provided for or instrument may provide that is fully and immediately effective, then the vote of such Lender will not, without Buyer itself shall be the consent vote for all of such Buyer’s portion of the Participant, agree to any amendment, waiver or other modification described Purchased Loans. Except in subsections (a), (b) or (c) the case of the first proviso sale of a participating interest to Section 10.01 that affects such Participant. Subject to subsection (e) of this Sectiona Buyer, the Borrower agrees that each relevant participation agreement shall not permit the Participant shall to transfer, pledge, assign, sell any subparticipation in or otherwise alienate or encumber its participation interest in the Purchased Loans. In no event may a Participant be entitled to an Affiliate of the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a LenderSeller.
Appears in 2 contracts
Samples: Master Repurchase Agreement (MDC Holdings Inc), Master Repurchase Agreement (MDC Holdings Inc)
Participations. Any (a) The Lender may at any timemay, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates , sell to one or Subsidiaries) more other Persons with its principal place of business in the United States (each, a “Participant”) participations in any portion comprising less than all or a portion of such Lender’s its rights and/or and obligations under this Agreement (including all or including, without limitation, a portion of its Commitment and/or Commitment, the outstanding Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to made by it and the Note or Notes held by it); provided provided, however, that (i) such the Lender’s obligations under this Agreement shall remain unchanged, (ii) such unchanged and the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (ii) any such participation shall be in an amount of not less than $1,000,000, but the Lender shall not sell any participation that, when taken together with all other participations, if any, sold by the Lender, covers all of the Lender’s rights and obligations and under this Agreement, (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers Borrower shall continue to deal solely and directly with such the Lender in connection with such the Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount Lender shall not permit any Participant to have any voting rights or any right to control the vote of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree with respect to any amendment, waiver modification, waiver, consent or other modification described in subsections action hereunder or under any other Credit Document (aexcept as to actions that would (A) reduce or forgive the principal amount of, or rate of interest on, any Loan, or reduce or forgive any fees or other Obligations, (B) extend any date (including the Maturity Date) fixed for the payment of any principal of or interest on any Loan, any fees or any other Obligations, or (C) increase any Commitment of the Lender), and (biv) no Participant shall have any rights under this Agreement or (c) any of the first proviso other Credit Documents, each Participant’s rights against the granting Lender in respect of any participation to Section 10.01 that affects such Participant. Subject to subsection (e) of this Sectionbe those set forth in the participation agreement, and all amounts payable by the Borrower agrees that each Participant hereunder shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent determined as if it were a the Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided not granted such Participant agrees to be subject to Section 2.13 as though it were a Lenderparticipation.
Appears in 2 contracts
Samples: Credit Agreement (Vesta Insurance Group Inc), Credit Agreement (Vesta Insurance Group Inc)
Participations. Any Each Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (one or more Lenders or other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) entities in all or a portion of such Lender’s rights and/or and obligations under this Agreement (including all or a portion of its Commitment and/or and the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it)other Loan Documents; provided that (a) any such sale or participation shall not affect the rights and duties of the selling Lender hereunder, (b) such participation shall not entitle such 144 participant to any rights or privileges under this Agreement or any Loan Documents, including without limitation, rights granted to the Lenders under §4.8, §4.9, §4.10 and §13, (c) such participation shall not entitle the participant to the right to approve waivers, amendments or modifications, (d) such participant shall have no direct rights against the Borrower, (e) such sale is effected in accordance with all Applicable Laws, and (f) such participant shall not be a Person controlling, controlled by or under common control with, or which is not otherwise free from influence or control by the Borrower and/or any Guarantor and shall not be a Defaulting Lender or an Affiliate of a Defaulting Lender; provided, however, such Lender may agree with the participant that it will not, without the consent of the participant, agree to (i) increase, or extend the term or extend the time or waive any requirement for the reduction or termination of, such Lender’s obligations under this Agreement shall remain unchangedCommitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or portions thereof owing to such Lender shall remain solely responsible (other than pursuant to an extension of the other parties hereto for the performance of such obligations and Revolving Credit Maturity Date pursuant to §2.12), (iii) reduce the Borroweramount of any such payment of principal, (iv) reduce the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations rate at which interest is payable thereon or (v) release any Guarantor (except as otherwise permitted under this Agreement). Each LenderAny Lender which sells a participation shall promptly notify the Agent of such sale and the identity of the purchaser of such interest. In addition, each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and such agency being solely for tax purposesstated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”), ; provided that no Lender shall maintain at such Lender’s Lending Office a register for the recordation have any obligation to disclose all or any portion of the names and addresses Participant Register (including the identity of each any participant or any information relating to a participant’s interest in any Commitments, Loans, or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, or other obligation is in registered form under Section 5f.103-1(c) of its Participantsthe United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain treat each Person whose name is recorded in the sole right to enforce Participant Register as the owner of such participation for all purposes of this Agreement and notwithstanding any notice to approve any amendment, modification or waiver the contrary. For the avoidance of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Sectiondoubt, the Borrower agrees that each Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a LenderRegister.
Appears in 2 contracts
Samples: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Participations. Any The Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agentany Borrower, sell participations to any Person (other than a natural person, a Defaulting Lender person or the Borrower Company or any of the BorrowerCompany’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such the Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the outstanding Letters of Credit and/or the Loans (including such Lender’s participations and/or the reimbursement obligations in L/C Obligations and/or Swing Line Loans) owing to itrespect of Letters of Credit); provided that (i) such the Lender’s obligations under this Agreement shall remain unchanged, (ii) such the Lender shall remain solely responsible to the other parties hereto Borrower for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers Borrower shall continue to deal solely and directly with such the Lender in connection with such the Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a the Lender sells such a participation shall provide that such the Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such the Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections that would (ai) postpone any date upon which any payment of money is scheduled to be made to such Participant, (ii) reduce the principal, interest, fees or other amounts payable to such Participant (provided, however, that the Lender may, without the consent of the Participant, (A) amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or Letter of Credit reimbursement obligation or to reduce any fee payable hereunder and (B) waive the right to be paid interest at the Default Rate), (b) or (ciii) of release the first proviso to Section 10.01 that affects such ParticipantParent from the Guaranty. Subject to subsection (ed) of this Section, the Borrower Company agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a the Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a the Lender.
Appears in 2 contracts
Samples: Credit Agreement (Sims Metal Management LTD), Credit Agreement (Metal Management Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or Borrower, the Administrative Agent, any Issuing Bank or the Swingline Lender, sell participations to any Person (other than a natural personPerson, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a Defaulting Lender natural Person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment Commitments and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Parent, the Borrower, the Administrative Agent, the Lenders Issuing Banks and the L/C Issuers Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to (v) increase such Lender’s Commitment, (w) extend the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender, (x) reduce the rate at which interest is payable thereon, or (y) release any amendment, waiver or other modification described in subsections (aGuarantor from its Obligations under the Guaranty except as contemplated by Section 7.14(d), (b) or (c) in each case, as applicable to that portion of such Lender’s rights and/or obligations that are subject to the first proviso to Section 10.01 that affects such Participantparticipation. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.10, 3.04 4.1, 4.4 (subject to the requirements and 3.05 limitations therein, including the requirements under Section 3.10(g) (it being understood that the documentation required under Section 3.10(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 4.6 as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 4.1 or Section 3.10, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Regulatory Change 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 4.6 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 12.3 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 3.3 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (American Homes 4 Rent, L.P.), Credit Agreement (American Homes 4 Rent)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, a Defaulting Lender holding company, investment vehicle or trust established 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 “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Lender and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names indemnities under Sections 2.20(e) and addresses of each of its Participants, and the amount of the participation sold 9.7 with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification which affects such Participant and for which the consent of such Lender is required (as described in subsections (aSection 10.1), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.19, 3.04 2.20 and 3.05 2.21 (subject to the requirements and limitations therein, including the requirements under Section 2.20(f) (it being understood that the documentation required under Section 2.20(f) shall be delivered by such Participant to the Lender granting such participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection Section 10.6(b); provided that such Participant (bA) agrees to be subject to the provisions of this SectionSections 2.23 as if it were an assignee under Section 10.6(b); and (B) shall not be entitled to receive any greater payment under Sections 2.19 or 2.20, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in any Requirement of 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 2.23 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 10.7 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.18(k) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, 124 Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (Nerdwallet, Inc.), Credit Agreement (Nerdwallet, Inc.)
Participations. Any Revolving Credit Lender may at any time, without the consent of, or notice to, the any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender person or the any Borrower or any of the Borrower’s Borrowers’ Affiliates or Subsidiaries, or any Defaulting Lender) (each, a “Participant”) in all or a portion of such Revolving Credit Lender’s rights and/or obligations under this Agreement (including all or a portion of its Revolving Credit Commitment and/or the Revolving Credit Loans (including such Revolving Credit Lender’s participations in L/C Obligations and/or Swing Line LoansObligations) owing to it); provided that (i) such Revolving Credit Lender’s obligations under this Agreement shall remain unchanged, (ii) such Revolving Credit Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the Administrative Agent, the Revolving Credit Lenders and the L/C Issuers shall continue to deal solely and directly with such Revolving Credit Lender in connection with such Revolving Credit Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Revolving Credit Lender sells such a participation shall provide that such Revolving Credit Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Revolving Credit Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections clause (a), (b) or (cy) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Revolving Credit Lender and had acquired its interest by assignment pursuant to subsection Section 10.06(b). In the event that any Revolving Credit Lender sells a participation pursuant to this Section 10.06(d), such Revolving Credit Lender shall maintain with respect to such participation, acting solely for this purpose as an agent of the Borrowers, a register comparable to the Register (b) the “Participant Register”). Interests in the rights and/or obligations of a Revolving Credit Lender under this SectionAgreement may be participated in whole or in part only by registration of such participation on such Participant Register. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Revolving Credit Lender; , provided such Participant agrees to be subject to Section 2.13 2.12 as though it were a Revolving Credit Lender.
Appears in 2 contracts
Samples: Credit Agreement (Masonite International Corp), Credit Agreement (Masonite International Corp)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person and any such participant may sell sub-participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (eacheach such Person, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) Term Loan owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, Agent and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderLender that sells a participation shall, acting solely for this purpose as an a non-fiduciary agent of the Borrower Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and such agency being solely for tax purposesstated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that, except with respect to a Voting Participant, no Lender shall maintain at such Lender’s Lending Office a register for the recordation have any obligation to disclose all or any portion of the names and addresses Participant Register (including the identity of each any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of its Participantsthe United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the amount of the participation sold to such Participant by such Lender and shall treat each Person whose name is recorded in the related interest amounts owing Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to such Participantthe contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (ef) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.11 as though it were a Lender.
Appears in 2 contracts
Samples: Term Loan Agreement (Plum Creek Timber Co Inc), Term Loan Agreement (Plum Creek Timber Co Inc)
Participations. Any Lender may at any timemay, without the notice to or consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates , at any time sell to one or Subsidiariesmore banks or other financial institutions ("Participants") (eachparticipating interests in any Loan owing to such Lender, a “Participant”) in all or a portion any Note held by such Lender, any Commitment of such Lender’s rights and/or obligations Lender or any other interest of such Lender under this Agreement and the other Credit Documents (including all or a portion for purposes of its Commitment and/or the Loans this subsection (including such Lender’s b), participations in L/C Obligations and/or and in Swing Line Loans) owing to it); provided that (i) . In the event of any such sale by a Lender of participating interests, 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 thereof, such Lender shall remain the holder of such obligations its Notes for all purposes under this Agreement and (iii) the Borrower, Borrower and the Administrative Agent, the Lenders and the L/C Issuers Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a any such sale is effected may require the selling Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without obtain the consent of the Participant, Participant in order for such Lender to agree in writing to any amendment, waiver or other modification described consent of a type specified in subsections clause (ai), (bii), (iii), (iv) or (cvii) of Section 8.04(a) but may not otherwise require the first proviso selling Lender to Section 10.01 that affects obtain the consent of such ParticipantParticipant to any other amendment, waiver or consent hereunder. Subject to subsection (e) of this Section, the The Borrower agrees that if amounts outstanding under this Agreement and the other Credit Documents are not paid when due (whether upon acceleration or otherwise), each Participant shall be entitled shall, to the benefits fullest extent permitted by law, be deemed to have the right of Sections 3.01, 3.04 setoff in respect of its participating interest in amounts owing under this Agreement and 3.05 any other Credit Documents to the same extent as if the amount of its participating interest were owing directly to it were as a Lender under this Agreement or any other Credit Documents; provided, however, that (i) no Participant shall exercise any rights under this sentence without the consent of the Administrative Agent, (ii) no Participant shall have any rights under this sentence or Section 2.12 which are greater than those of the selling Lender and had acquired (iii) such rights of setoff shall be subject to the obligation of such Participant to share the payment so obtained with all of the Lenders as provided in Section 2.10(b). The Borrower also agrees that any Lender which has transferred any participating interest in its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by lawCommitment or Loans shall, each Participant also shall notwithstanding any such transfer, be entitled to the full benefits of Section 10.08 accorded such Lender under Sections 2.11, 2.12 and 2.13, as though it were a Lender; provided if such Participant agrees to be subject to Section 2.13 as though it were a LenderLender had not made such transfer.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Wild Oats Markets Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, time sell participations to any Person (other than a natural person, a Defaulting Lender person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations, (iii) the Borrower, the Administrative Agent, Agent and the Lenders and the L/C Issuers shall continue to deal solely and directly directly, with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (iv) unless an Event of Default has occurred and is continuing, any such participation must be approved by the Borrower, which approval shall not be unreasonably withheld or delayed. Each LenderNotwithstanding the foregoing, acting solely for this purpose as if an agent Event of Default, other than pursuant to Section 8.01(a) or Section 8.01(f), has occurred and is continuing, no participations will be permitted to be made without the consent of the Borrower Borrower, which consent shall not be unreasonably withheld or delayed, other than to other Lenders, Affiliates of Lenders, Approved Funds, or other commercial banks or regulated financial institutions which are rated by (and such agency being solely for tax purposes)or whose direct or indirect parent are rated by) S&P, shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such ParticipantXxxxx’x or Fitch. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 11.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 11.08 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.11 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Commitments, Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any obligations under any Loan Document) 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 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.
Appears in 2 contracts
Samples: Assignment and Assumption (PayPal Holdings, Inc.), Credit and Guarantee Agreement (PayPal Holdings, Inc.)
Participations. Any Lender (i) Except as otherwise specifically provided herein, any Purchaser may at any time, without the consent of, sell to one or notice to, the Borrower or the Administrative Agent, sell participations to any Person more Persons (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, each a “Participant”) participating interests in all or a portion the interests of such Lender’s Purchaser hereunder; provided, that no Purchaser shall grant any participation under which the Participant shall have rights and/or obligations under to approve any amendment to or waiver of this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender any other Transaction Document. Such Purchaser shall remain solely responsible to for performing its obligations hereunder, and the other parties hereto for the performance of such obligations and (iii) the BorrowerSeller, the Administrative AgentServicer, the Lenders each Purchaser Agent and the L/C Issuers Administrator shall continue to deal solely and directly with such Lender Purchaser in connection with such LenderPurchaser’s rights and obligations hereunder. A Purchaser shall not agree with a Participant to restrict such Purchaser’s right to agree to any amendment, waiver or modification hereto, except amendments, waivers or modifications that require the consent of all Purchasers. (ii) Notwithstanding anything contained in paragraph (a) or clause (i) of paragraph (b) of this Section 5.3, each of the LC Bank and each LC Participant may sell participations in all or any part of any Funded Purchase made by such LC Participant to another bank or other entity so long as (x) no such grant of a participation shall, without the consent of the Seller, require the Seller to file a registration statement with the SEC and (y) no holder of any such participation shall be entitled to require such LC Participant to take or omit to take any action hereunder except that such LC Participant may agree with such participant that, without such Participant’s consent, such LC Participant will not consent to an amendment, modification or waiver that requires the consent of all LC Participants. Any such Participant shall not have any rights hereunder or under this Agreementthe Transaction Documents. (iii) Each LenderPurchaser that sells a participation shall, acting solely for this purpose as an a non-fiduciary agent of the Borrower Seller, maintain a register on which it enters the name and address of each Participant and the interest in a Purchased Interest (and such agency being solely for tax purposes)Discount, shall maintain at such Lender’s Lending Office a register for the recordation of the names fees and addresses other similar amounts under this Agreement) of each of its Participants, and Participant’s interest in a Purchased Interest or other obligations under the amount of Transaction Documents (the participation sold to such “Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this AgreementRegister”); provided that such agreement no Purchaser shall have any obligation to disclose all or instrument may provide any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in a Purchased Interest) to any Person except to the extent that such Lender will not, without the consent of the Participant, agree disclosure is necessary to any amendment, waiver or other modification described establish that a Purchased Interest is in subsections (a), (b) or (cregistered form under Section 5f.103-1(c) of the first proviso to Section 10.01 that affects United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Participant. Subject to subsection (e) Purchaser shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this SectionAgreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Borrower agrees that each Administrator (in its capacity as Administrator) shall have no responsibility for maintaining a Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a LenderRegister.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Arch Coal Inc), Receivables Purchase Agreement (Arch Coal Inc)
Participations. Any Lender may at any time, without the consent oftime grant to an affiliate of such Lender, or notice to, the Borrower one or the Administrative Agent, sell participations to any Person more banks or other financial institutions (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, each a “Participant”) participating interests in all its Commitments or a portion of the Obligations owing to such Lender’s . Except as expressly stated herein, no Participant shall have any rights and/or obligations or benefits under this Agreement (including all or any other Loan Document. In the event of any such grant by a portion Lender of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing a participating interest to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchangeda Participant, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such its obligations hereunder, and (iii) the Borrower, Borrower and the Administrative Agent, the Lenders and the L/C Issuers Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a any Lender sells may grant such a participation participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce this Agreement and the obligations of the Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a)i) increase such Lender’s Commitment, (bii) extend the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender, (iii) reduce the rate at which interest is payable thereon, (iv) release any Collateral (except as expressly provided in the Loan Documents) or (v) release Guarantor from any liability under the Guaranty (except as expressly provided in the Loan Documents). An assignment or other transfer which is not permitted by subsection (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection or (ed) below shall be given effect for purposes of this Section, the Borrower agrees that each Participant shall be entitled Agreement only to the benefits extent of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its participating interest by assignment pursuant to granted in accordance with this subsection (b) of this Section). To A Participant, through the extent permitted by lawapplicable participating Lender, each Participant also shall be entitled to the benefits of Section 10.08 2.11 in the same manner as though if it were a Lender; provided an Assignee so long as such Participant agrees shall have complied with the requirements of Section 2.11, and, provided, further, that no Participant shall be entitled to be subject receive any greater amount pursuant to Section 2.13 2.11 than the participating Lender would have been entitled to receive with respect to the direct or indirect participation sold to the Participant (and without duplication of amounts payable to such participating Lender). Each Lender that sells a participation shall, acting solely for this purpose as though an agent of Borrower, maintain a register on which it were enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant's interest in the Loans, Commitments or other obligations under any Loan Document from time to time (the "Participant Register"). The obligations of Borrower under the Loan Documents are registered obligations within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations and any other relevant or successor provisions of the Internal Revenue Code or such regulations (and shall be construed as such) and the right, title and interest of each Participant in and to such obligations shall be transferable only upon notation of such transfer in the Participant Register. 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 LenderParticipant's interest in any Commitments, Loans, or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, or other obligation is in registered form under Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code. 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.
Appears in 2 contracts
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.), Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Participations. Any Lender may at any time, without the consent of, or but with prior notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or its Pro Rata Share of the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) Loan owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations, (iii) the Borrower, the Administrative Agent, the Agent and Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation indemnity under Section 5.7 without regard to the existence of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participantany participation. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) the second proviso of the first proviso to Section 10.01 6.9 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each A Participant shall not be entitled to receive any greater payment under Sections 1.7, 1.8, or 1.9 than the benefits of Sections 3.01, 3.04 and 3.05 applicable Lender would have been entitled to receive with respect to the same extent participation sold to such Participant. Each Lender that sells a participation shall, acting solely for this purpose as if an agent of Borrower, maintain a register on which it were a Lender enters the name and had acquired its interest by assignment pursuant to subsection address of each Participant and the principal amount (band stated interest) of this Section. To each Participant’s interest in the Loan or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent permitted by lawthat such disclosure is necessary to establish that such commitment, each loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant also Register shall be entitled conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the benefits contrary. For the avoidance of Section 10.08 doubt, Administrative Agent (in its capacity as though it were Administrative Agent) shall have no responsibility for maintaining a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a LenderRegister.
Appears in 2 contracts
Samples: Construction Loan Agreement (Armada Hoffler Properties, Inc.), Construction Loan Agreement (Armada Hoffler Properties, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a trust for the benefit of a natural person, a Defaulting Lender or Lender, the Borrower Company or any of the BorrowerCompany’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the Administrative Agent, the Lenders and the L/C Issuers Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderLender that sells a participation shall, acting solely for this purpose as an agent of the Borrower Borrowers solely for this purpose, maintain a register on which it enters the name and address of each Participant and the principal amounts (and such agency being solely for tax purposesstated interest) of each Participant’s interest in the Loans, or other obligations under this Agreement (the “Participant Register”), ; provided that no Lender shall maintain at such Lender’s Lending Office a register for the recordation have any obligation to disclose all or any portion of the names and addresses Participant Register to any Person except to the extent that such disclosure is necessary to establish compliance with any applicable provision of each the Code, including to establish that any Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of its Participantsthe United States Treasury Regulations. The entities in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the amount Participant Register as the owner of such participation for all purposes of the participation sold to such Participant by such Lender and the related interest amounts owing to such ParticipantAgreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 2.11 as though it were a Lender.
Appears in 2 contracts
Samples: Credit Agreement (Allied Motion Technologies Inc), Credit Agreement (Allied Motion Technologies Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Disbursing Agent, sell participations to any Person (other than a natural personPerson, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a Defaulting Lender or natural Person, the Borrower or any of the Borrower’s Affiliates or SubsidiariesSubsidiaries or a Disqualified Lender) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, Agents and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold indemnity under Section 9.05(c) with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participants. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification described in subsections clauses (ai), (bii) or and (c) v), of the first proviso to Section 10.01 9.01(a) that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01Section 2.15, 3.04 Section 2.16 and 3.05 Section 2.17 (subject to the requirements and limitations therein, including the requirements in Section 2.16(g) (it being understood that the documentation required under Section 2.16(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection Section 9.06(b); provided that such Participant (bA) agrees to be subject to the provisions of this SectionSection 2.19 as if it were an assignee under Section 9.06(b); and (B) shall not be entitled to receive any greater payment under Section 2.15 or Section 2.16 with respect to any participation than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. 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 2.19(a) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 9.07(b) as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 9.07(a) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Disbursing Agent (in its capacity as Disbursing Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Credit Agreement (Pacific Investment Management Co LLC), Credit Agreement (FreightCar America, Inc.)
Participations. Any Lender may may, without notice to or consent of the Borrowers, at any time, without the consent of, time sell to one or notice to, the Borrower more banks or the Administrative Agent, sell participations to any Person other financial institutions (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ParticipantParticipants”) participating interests in all or a portion of any Loan owing to such Lender’s rights and/or obligations , any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender under this Agreement and the other Credit Documents (including all or a portion for purposes of its Commitment and/or the Loans this subsection (including such Lender’s b), participations in L/C Obligations and/or and in Swing Line Loans) owing to it); provided that (i) . In the event of any such sale by a Lender of participating interests, 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 thereof, such Lender shall remain the holder of such obligations its Notes for all purposes under this Agreement and (iii) the Borrower, Borrowers and the Administrative Agent, the Lenders and the L/C Issuers Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a any such sale is effected may require the selling Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without obtain the consent of the Participant, Participant in order for such Lender to agree in writing to any amendment, waiver or other modification described consent of a type specified in subsections clause (ai), (bii), (iii), (iv), (v) or (cvii) of Section 8.04(a) or Section 8.04(b) but may not otherwise require the first proviso selling Lender to Section 10.01 obtain the consent of such Participant to any other amendment, waiver or consent hereunder. The Borrowers agree that affects such Participant. Subject to subsection if amounts outstanding under this Agreement and the other Credit Documents are not paid when due (e) of this Sectionwhether upon acceleration or otherwise), the Borrower agrees that each Participant shall be entitled shall, to the benefits fullest extent permitted by law, be deemed to have the right of Sections 3.01, 3.04 setoff in respect of its participating interest in amounts owing under this Agreement and 3.05 any other Credit Documents to the same extent as if the amount of its participating interest were owing directly to it were as a Lender under this Agreement or any other Credit Documents; provided, however, that (i) no Participant shall exercise any rights under this sentence without the consent of the Administrative Agent, (ii) no Participant shall have any rights under this sentence which are greater than those of the selling Lender and had acquired (iii) such rights of setoff shall be subject to the obligation of such Participant to share the payment so obtained with all of the Lenders as provided in Section 2.10(b). The Borrowers also agree that any Lender which has transferred any participating interest in its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by lawCommitment or Loans shall, each Participant also shall notwithstanding any such transfer, be entitled to the full benefits of Section 10.08 accorded such Lender under Sections 2.11, 2.12 and 2.13, as though it were a Lender; provided if such Participant agrees to be subject to Section 2.13 as though it were a LenderLender had not made such transfer.
Appears in 2 contracts
Samples: Guaranty Agreement (American Commercial Lines Inc.), Credit Agreement (American Commercial Lines Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, Agent and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation indemnity under Section 10.04(c) without regard to the existence of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participantany participation. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this AgreementAgreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections clauses (a), (b) or (c) of the first proviso to Section 10.01 that directly affects such Participant (it being understood that (i) any vote to rescind any acceleration made pursuant to Section 8.02 of amounts owing with respect to the Loans and other Obligations and (ii) any modifications of the provisions relating to amounts, timing or application of prepayments of Loans and other Obligations shall not require the approval of such Participant). Subject to subsection (e) of this Section, the each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent (subject to the requirements in those sections, including timely delivery of forms pursuant to Section 3.01) as if it were a Lender of the relevant Loan and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.13 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 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except, subject to subsection (e) of this Section, 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 Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Samples: Term Loan Agreement (Panera Bread Co), Term Loan Agreement (Panera Bread Co)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, a Defaulting Disqualified Lender or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries; provided that such restriction shall not apply to any Lender on the Closing Date or an Affiliate or Approved Fund of such Lender to the extent such Person becomes an Affiliate of the Borrower or its Subsidiaries after the Closing Date) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that provided, (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Agent and Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold indemnity under Section 10.3(b) with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that provided, such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification described in subsections (a), (bSection 10.5(b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 2.16 and 3.05 2.17 (subject to the requirements and limitations of such sections) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection clause (b) of this SectionSection (it being understood that the documentation required under Section 2.17(g) shall be delivered solely to the participating Lender); provided, such Participant shall be subject to the provisions of Section 2.18 and Section 2.19 as if it were an assignee under Section 10.6(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 10.4 as though it were a Lender; provided provided, such Participant agrees to shall be subject to Section 2.13 2.17 as though it were a Lender. Each Lender that sells a participation pursuant to this Section shall maintain a register on which it records the name and address of each Participant and the principal amounts of each Participant’s participation interest with respect to the Loans and the Commitments (each, a “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of a participation with respect to such Loans or Commitments for all purposes under this Agreement, notwithstanding any notice to the contrary. In maintaining the Participant Register, such Lender shall be acting as the agent of the Borrower solely for this purpose and undertakes no duty, responsibility or obligation to the Borrower (without limitation, in no event shall such Lender be a fiduciary of the Borrower for any purpose, except that such Lender shall maintain the Participant Register); provided, no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, or its other obligations under this Agreement) except to the extent that such disclosure is necessary to establish in connection with a Tax audit that such Commitment, Loan, or other obligation is in registered form under Section 5f.103(c) of the United States Treasury Regulations or, if different, under Sections 871(h) or 881(c) of the Code. A Participant shall not be entitled to receive any greater payment under Sections 2.16 or 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant (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) unless the sale of the participation to such Participant is made with the Borrower’s prior written consent.
Appears in 2 contracts
Samples: First Lien Credit and Guaranty Agreement (Airbnb, Inc.), First Lien Credit and Guaranty Agreement (Airbnb, Inc.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, time sell participations to any Person (other than a natural person, a Defaulting Lender person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Credit Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (ia) such Lender’s obligations under this Credit Agreement shall remain unchanged, (iib) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations, (iiic) the Borrower, the Administrative Agent, the Lenders Agent and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Credit Agreement. Each Lender, acting solely for this purpose and (d) so long as an agent no Default or Event of Default has occurred and is then continuing, the approval of the Borrower (and not to be unreasonably withheld or delayed) shall be required in connection with the sale of a participant interest to a Person other than (i) another Lender, (ii) an Affiliate of such agency being solely for tax purposes)Lender or (iii) an Approved Fund; provided, however that this clause (d) shall maintain at such Lender’s Lending Office not be applicable to participations sold by a register for Lender if the recordation participation interest sold does not exceed 50% of the names and addresses Commitment of each of its Participants, and such Lender on the amount date of the sale of such participation sold to such Participant by such Lender and the related interest amounts owing to such Participantinterest. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Credit Agreement and to approve any amendment, modification or waiver of any provision of this Credit Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification of the type described in subsections (aSection 16.12(a) or Section 16.12(b), (b) or (c) of the first proviso to Section 10.01 that in each case, affects such Participant. Subject to subsection (e) the last paragraph of this SectionSection 15.4, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.015.1.2, 3.04 5.1.4, 5.4, 5.5, 5.6 and 3.05 5.8 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this SectionSections 15.2. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 16.1 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 16.1 as though it were a Lender. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 5.1.2 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 5.1.3 as though it were a Lender.
Appears in 2 contracts
Samples: Credit Agreement (SeaCube Container Leasing Ltd.), Credit Agreement (SeaCube Container Leasing Ltd.)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or Borrower, the Administrative Agent, the Swingline Lender or any Issuing Bank, sell participations to any Person (other than a natural personPerson, any investment vehicle established primarily for the benefit of a Defaulting Lender natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Banks and the L/C Issuers Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver (w) increase or other modification described in subsections (a)extend such Lender’s Commitments, (bx) extend the date fixed for the payment of interest, fees or principal on the Loans or portions thereof owing to such Lender, (y) reduce the principal of any Loan or the rate at which interest is payable thereon (other than with respect to a waiver of implementation of interest at the Post-Default Rate) or (cz) release any Guarantor from its Obligations under the Guaranty except as contemplated by Section 8.14.(b), in each case, as applicable to that portion of such Lender’s rights and/or obligations that are subject to the first proviso to Section 10.01 that affects such Participantparticipation. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.10., 3.04 5.1., 5.4. (subject to the requirements and 3.05 limitations therein, including the requirements under Section 3.10.(g) (it being understood that the documentation required under Section 3.10.(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 5.6. as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 5.1. or 3.10., with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Regulatory Change 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 5.6. with respect to any Participant. To the extent permitted by lawApplicable Law, each Participant also shall be entitled to the benefits of Section 10.08 13.3. as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 3.3. as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form for purposes of Section 163(f) of the Internal Revenue Code under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) 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 notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 1 contract
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, time sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or SubsidiariesDisqualified Lender) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, (iii) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) will be required for sale by any Lender (other than a sale by the initial Lender to any Participant that is not a Competitor) of a participation, unless an Event of Default has occurred and is continuing at the time of such sale; provided that the Borrower will be deemed to have consented to any such sale unless it objects thereto by written notice to the Administrative Agent within 10 Business Days after notice thereof, and (iiiiv) the Borrower, the Administrative Agent, Agent and the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation indemnity under Section 11.04(d) without regard to the existence of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participantany participation. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 11.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 3.01 (subject to the requirements and limitations therein, including the requirements under Section 3.01(f) (it being understood that the documentation required under Section 3.01(f) shall be delivered to the Lender that sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06(b) and 11.13 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 3.06 or 3.01, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. 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 3.06(b) and 11.13 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 11.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.11 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans 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.
Appears in 1 contract
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Borrowers or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower Borrowers or any of the Borrower’s Affiliates or Restricted Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C C-BA Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the Administrative Agent, the Lenders and the L/C Issuers C-BA Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this AgreementAgreement and provided further that, so long as no Event of Default has occurred and is continuing at the time of such participation, with respect to the sale of any participation in the Singapore Term Loan Facility, the Borrowing Agent’s consent shall be required, which consent shall not be unreasonably withheld or delayed (it being agreed that the Borrowing Agent shall be deemed to be reasonable in withholding its consent to any assignment in respect of the Singapore Term Loan Facility if the proposed assignment is not to a commercial bank organized under the laws of the Republic of Singapore or a Singapore-authorized branch of a commercial bank organized under the laws of a jurisdiction other than Singapore). Each LenderLender that sells a participation shall, acting solely for this purpose as an agent of the Borrower Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and such agency being solely for tax purposesstated interest) of each Participant’s interest in the Obligations under the Loan Documents (the “Participant Register”), ; provided that no Lender shall maintain at such Lender’s Lending Office a register for the recordation have any obligation to disclose all or any portion of the names and addresses Participant Register to any Person (including the identity of each any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its Participantsother obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the amount of the participation sold to such Participant by such Lender and shall treat each Person whose name is recorded in the related interest amounts owing Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to such Participantthe contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.
Appears in 1 contract
Samples: Fourth Amended and Restated Credit Agreement (World Fuel Services Corp)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, a Defaulting Lender holding company, investment vehicle or trust established 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 “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Lender and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names indemnities under Sections 2.20(e) and addresses of each of its Participants, and the amount of the participation sold 9.7 with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification which affects such Participant and for which the consent of such Lender is required (as described in subsections (aSection 10.1), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.19, 3.04 2.20 and 3.05 2.21 (subject to the requirements and limitations therein, including the requirements under Section 2.20(f) (it being understood that the documentation required under Section 2.20(f) shall be delivered by such Participant to the Lender granting such participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection Section 10.6(b); provided that such Participant (bA) agrees to be subject to the provisions of this SectionSections 2.23 as if it were an assignee under Section 10.6(b); and (B) shall not be entitled to receive any greater payment under Sections 2.19 or 2.20, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in any Requirement of 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 2.23 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 10.7 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.18(k) as though it were a Lender.. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. 122
Appears in 1 contract
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, a Defaulting holding company, investment vehicle or trust established 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 “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Lender and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such LenderXxxxxx’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names indemnities under Sections 2.15(e) and addresses of each of its Participants, and the amount of the participation sold 9.7 with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification which affects such Participant and for which the consent of such Lender is required (as described in subsections (aSection 10.1), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.14, 3.04 2.15 and 3.05 2.16 (subject to the requirements and limitations therein, including the requirements under Section 2.15(f) (it being understood that the documentation required under Section 2.15(f) shall be delivered by such Participant to the Lender granting such participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection Section 10.6(b); provided that such Participant (bA) agrees to be subject to the provisions of this SectionSections 2.18 as if it were an assignee under Section 10.6(b); and (B) shall not be entitled to receive any greater payment under Sections 2.14 or 2.15, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in any Requirement of 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 2.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 10.7 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.13(j) as though it were a Lender.. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other
Appears in 1 contract
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Parties or the Administrative Agent, sell participations to any Person (other than a natural person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrower Parties, the Administrative Agent, the Lenders and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, notwithstanding notice to the contrary. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation indemnity under Section 10.05 without regard to the existence of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participantany participation. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections that would (a)i) postpone any date upon which any payment of money is scheduled to be paid to such Participant, (bii) reduce the principal, interest, fees or other amounts payable to such Participant, or (ciii) of release any Guarantor from the first proviso Guaranty to Section 10.01 which it is a party. Each Lender that affects such Participant. Subject sells a participation agrees, at the Borrower’s request and expense, to subsection (e) of this Section, use reasonable efforts to cooperate with the Borrower agrees that each Participant shall be entitled to effectuate the benefits provisions of Sections 3.01, 3.04 and 3.05 Section 3.06 with respect to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Sectionany Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 10.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 1 contract
Participations. (a) Any Lender may at any time, without the consent oftime grant to an affiliate of such Lender, or notice to, the Borrower one or the Administrative Agent, sell participations to any Person more banks or other financial institutions (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, each a “Participant”) participating interests in all or a the portion of the Debt owing to such Lender’s . Except as otherwise expressly stated herein, no Participant shall have any rights and/or obligations or benefits under this Agreement (including all or any other Loan Document. In the event of any such grant by a portion Lender of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing a participating interest to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchangeda Participant, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such its obligations hereunder, and (iii) the Borrower, Borrower and the Administrative Agent, the Lenders and the L/C Issuers Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a any Lender sells may grant such a participation participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce this Agreement and the obligations of the Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to any amendment(i) increase such Lender’s Individual Loan Commitment, waiver (ii) extend the date fixed for the payment of principal on the Loan or portions thereof owing to such Lender, or (iii) reduce the rate at which interest is payable thereon. An assignment or other modification described transfer which is not permitted by Section 18.15 below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in subsections (a), accordance with this Section 18.14. Subject to paragraph (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this SectionSection 18.14, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01Subsections 2.5(b)(v), 3.04 (vi), (vii), and 3.05 (viii) to the same extent as if it were a Lender hereunder and had acquired its interest by assignment pursuant to subsection Section 18.15. Except as set forth in Section 18.26 below, no Borrower Party shall be liable or responsible for any costs or expenses incurred by the Administrative Agent, any Lender, any Participant, or any Affiliate of any of the foregoing in connection with any transaction contemplated pursuant to this Section 18.14. 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 (band stated interest) of this Section. To each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent permitted by lawthat such disclosure is necessary to establish that such commitment, each loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant also Register shall be entitled conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the benefits contrary. For the avoidance of Section 10.08 doubt, the Administrative Agent (in its capacity as though it were Administrative Agent) shall have no responsibility for maintaining a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a LenderRegister.
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Participations. Any Lender may at any time(in the case of a participation in a Revolving Commitment, without with the consent of, or notice to, of the Borrower or the Administrative Agent, (such consent not to be unreasonably withheld)) sell participations to any Person one or more banks or other entities (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment and/or Commitments and the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) and LC Disbursements owing to it); provided, that the Borrower shall be deemed to have consented to any such sale unless it shall object thereto by written notice to such Lender (with copy to the Administrative Agent) within 5 Business Days after having received written notice thereof; provided further that (i) such Lender’s obligations under this Agreement and the other Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and obligations, (iii) the Borrower, the Administrative Agent, the Lenders Issuing Bank and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent Agreement and the other Loan Documents and (iv) no consent of the Borrower shall be required for (A) a participation to a Lender, an Affiliate of a Lender, or, if an Event of Default has occurred and is continuing or (B) if such agency being solely for tax purposes), shall maintain Participant does not have the right to receive any non-public information that may be provided pursuant to this Agreement and the Lender selling such participation agrees with the Borrower at such Lender’s Lending Office a register for the recordation time of the names and addresses sale of each of its Participants, and such participation that it will not deliver any non-public information to the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this AgreementAgreement or any other Loan Document; 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 or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 9.02(b) that affects such Participant. Subject to subsection paragraph (ef) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.012.14, 3.04 2.15 and 3.05 2.16 (subject to the requirements and limitations of such Sections, including Section 2.16(e)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this SectionSection (provided that any documentation required to be provided under Section 2.16(e) shall be provided solely to the participating Lender). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 9.08 as though it were a Lender; , provided such Participant agrees to shall be subject to Section 2.13 2.17(d) as though it were a Lender.Lender hereunder. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and interest amounts) of each Participant’s interest in the Commitments 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 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. 110
Appears in 1 contract
Samples: Senior Secured Credit Agreement (FS Energy & Power Fund)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Borrower, the Issuing Lender or the Administrative Agent, sell participations to any Person (other than (x) a natural personPerson or a holding company, investment vehicle or trust for, or owned or operated for the primary benefit of, a Defaulting Lender natural Person or the Borrower or any of Borrower, (y) the Borrower’s Affiliates or SubsidiariesSubsidiaries or (z) any Disqualified Institutions (to the extent that a list of Disqualified Institutions has been provided to any such Lender upon such Lxxxxx’s written request)) (each, each a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Lender and the L/C Issuers Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold indemnity under Section 11.3(c) with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). 131 Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification described in subsections Sections 11.1(a) through (a), (bi) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.013.1, 3.04 3.2 (subject to the requirements and 3.05 limitations therein, including the requirements under Section 3.2 (it being understood that the documentation required under Section 3.2 shall be delivered to the participating Lender)), 3.5 and 11.3 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection clause (b) of this SectionSection 11.7; provided that such Participant (A) agrees to be subject to the provisions of Section 3.6 as if it were an assignee under clause (b) of this Section 11.7; and (B) shall not be entitled to receive any greater payment under Section 3.1 or 3.2, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. 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 3.6 with respect to any Participant. To the extent permitted by lawLaw, each Participant also shall be entitled to the benefits of Section 10.08 9.2(c) as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.16 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. CoBank reserves the right to assign or sell participations in all or part of its Commitments or outstanding Loans hereunder on a non-patronage basis. Notwithstanding the preceding paragraph, any Participant that is a Farm Credit Lender or the Federal Agricultural Mortgage Corporation that (i) has purchased a participation, (ii) has been designated as a voting Participant (other than any Disqualified Institution (to the extent that a list of Disqualified Institutions has been provided to any such Lender upon such Lxxxxx’s written request)) (a “Voting Participant”) in a notice (a “Voting Participant Notice”) sent by the relevant Lender (including any existing Voting Participant) to the Administrative Agent and (iii) receives, prior to becoming a Voting Participant, the consent of the Administrative Agent (such Administrative Agent consent to be required only to the extent and under the circumstances it would be required if such Voting Participant were to become a Lender pursuant to an assignment in accordance with Section 11.7(b) and such consent is not required for an assignment to an existing Voting Participant), shall be entitled to vote as if such Voting Participant were a Lender on all matters subject to a vote by Lxxxxxx, and the voting rights of the selling Lender (including any existing Voting Participant) shall be correspondingly reduced, on a dollar-for-dollar basis. Each Voting Participant Notice shall include, with respect to each Voting Participant, the information that would be included by a prospective Lender in an Assignment and Assumption. Notwithstanding the foregoing, each Farm Credit Lender designated as a Voting Participant in Schedule 11.7 and, if applicable, the Federal Agricultural Mortgage Corporation shall be a Voting Participant without delivery of a Voting Participant Notice and without the prior written consent of the Administrative Agent. The selling Lender (including any existing Voting Participant) and the purchasing Voting Participant shall notify the Administrative Agent within three (3) Business Days of any termination, reduction or increase of the amount of, such participation. The Administrative Agent shall be entitled to conclusively rely on information contained in Voting Participant Notices and all other notices delivered pursuant hereto. The voting rights of each Voting Participant are solely for the benefit of such Voting Participant and shall not inure to any assignee or participant of such Voting Participant that is not a Farm Credit Lender.
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Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Borrowers or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “"Participant”") in all or a portion of such Lender’s 's rights and/or obligations under this Credit Agreement (including all or a portion of its Revolving Credit Commitment, Term A Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it; provided however, that a Lender may sell participations in all or a portion of its Canadian Commitment Percentage and Canadian Loans outstanding, only to an Eligible Canadian Assignee); provided further that (ia) such Lender’s 's obligations under this Credit Agreement shall remain unchanged, (iib) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iiic) the BorrowerBorrowers, the Administrative Agent, the Lenders Agent and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Credit Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Credit Agreement and to approve any amendment, modification or waiver of any provision of this Credit Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that would reduce the principal of or other modification described in subsections (a)the interest rate on any Loans, (b) extend the term or (c) increase the amount of the first proviso Revolving Credit Commitment or Term A Commitment of such Lender as it relates to Section 10.01 that affects such Participant, reduce the amount of any Commitment Fees or Letter of Credit Fees to which such Participant is entitled or extend any regularly scheduled payment date for principal or interest. Subject to subsection (e) Section 20.6, each of this Section, the Borrower Borrowers agrees that each Participant shall be entitled to the benefits of Sections 3.016.2.2, 3.04 6.6, 6.7, and 3.05 6.9 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this SectionSection 20.2. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 15 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 15 as though it were a Lender.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Dave & Busters Inc)
Participations. Any Each Lender may at shall have the right, with the consent of the Agent (which consent shall not be unreasonably withheld or delayed), to grant participations to one or more banks or other financial institutions (each a "PARTICIPANT") in all or any timepart of any Loans and Letter of Credit Participations owing to such Lender and the Revolving Credit Notes held by such Lender. Each Lender shall retain the sole right to approve, without the consent ofof any Participant, any amendment, modification or waiver of any provision of the Loan Documents, PROVIDED that the documents evidencing any such participation may provide that, except with the consent of such Participant, such Lender will not consent to (a) the reduction in or forgiveness of the stated principal of or rate of interest on or commitment fee with respect to the portion of any Revolving Credit Loan subject to such participation, (b) the extension or postponement of any stated date fixed for payment of principal or interest or commitment fee with respect to the portion of any Revolving Credit Loan subject to such participation, or notice to, (c) the Borrower waiver or the Administrative Agent, sell participations reduction of any right to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion indemnification of such Lender’s rights and/or obligations under Lender hereunder. Notwithstanding the foregoing, no participation shall operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement (including all or Agreement. In the event of any such sale by a portion Lender of its Commitment and/or the Loans (including participating interests to a Participant, such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance thereof, such Lender shall remain the holder of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders Revolving Credit Notes for all purposes under this Agreement and the L/C Issuers Borrowers 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. Each LenderNotwithstanding anything to the contrary contained herein, acting solely for this purpose as an agent the Borrowers agree that provisions of the Borrower (and such agency being solely for tax purposesSections 2.8(a), 2.9, 2.11, 2.12 and 2.13 shall maintain at such Lender’s Lending Office a register for inure to the recordation of the names and addresses benefit of each Participant, and each Lender may enforce such provisions on behalf of any of its Participants; PROVIDED, and however, in no event shall the amount of the participation sold Borrowers be required to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled pay to the benefits Participants of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and such Lender, in the aggregate, any amounts in excess of the total amount they would otherwise be obligated to pay to such Lender under the applicable section referred above had acquired its interest by assignment such Lender not granted participations pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a Lender9.2.
Appears in 1 contract
Samples: Credit Agreement (Learning Co Inc)
Participations. (i) Any Lender may at any timemay, without the consent of, or notice toof the Account Parties, the Borrower Administrative Agent or the Administrative Agentany Issuing Lender, sell participations to any Person one or more banks or other entities (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or and obligations under this Agreement and the other Credit Documents (including all or a portion of its Commitment and/or Commitment, the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) and the LC Disbursements owing to it); provided that (iA) any such participation sold to a Participant which is not a Lender or a Federal Reserve Bank or in the case of obligations owing under this Agreement by an Irish Account Party, where the Participant is not an Irish Qualifying Lender, shall be made only with the consent (which in each case shall not be unreasonably withheld) of XL Group and the Administrative Agent, unless a Default has occurred and is continuing, in which case the consent of XL Group shall not be required, (B) such Lender’s obligations under this Agreement and the other Credit Documents shall remain unchanged, (iiC) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iiiD) the BorrowerAccount Parties, the Administrative Agent, the Lenders Agent and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, Agreement and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participantother Credit Documents. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Credit Documents and to approve any amendment, modification or waiver of any provision of this AgreementAgreement or the other Credit 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 or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 10.02(b) that affects such Participant. Subject to subsection paragraph (ec)(ii) of this Section, the Borrower agrees Account Parties agree that each Participant shall be entitled to the benefits and subject to the limitations of Sections 3.01, 3.04 2.15 and 3.05 2.17 (subject to the requirements of such Sections) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection paragraph (b) of this Section. To At the extent permitted by lawtime of the sale of the participating interest, each the Lender transferring the interest shall cause the Participant also shall be entitled to provide the benefits of Section 10.08 forms required, and cooperate with the relevant Account Party as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.required, under 112
Appears in 1 contract
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Borrowers or the Administrative Agent, sell participations to any Person (other than a natural personPerson, a Defaulting Lender or the any Borrower or any of the Borrower’s Borrowers’ Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such LenderXxxxxx’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerBorrowers, the Administrative Agent, the Lenders and the L/C Issuers Issuer shall continue to deal solely and directly with such Lender in connection with such LenderXxxxxx’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation indemnity under Section 10.04(c) without regard to the existence of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participantany participation. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide (A) that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant and (B) solely in the case of a bank that is a member of the Farm Credit System that (x) has purchased a participation interest in the minimum amount of $3,000,000 in such Xxxxxx’s Commitment on or after the Closing Date and (y) is, by written notice (“Voting Participant Notification”), designated by such Lender to the Administrative Borrower and the Administrative Agent as being entitled to be accorded the rights of a Voting Participant hereunder (any bank that is a member of the Farm Credit System so designated being called a “Voting Participant”), that such Voting Participant shall be entitled to vote (and the voting rights of such Lender shall be correspondingly reduced), on a Dollar for Dollar basis, as if such Voting Participant were a Lender on any matter requiring or allowing a Lender to provide or withhold its consent or to otherwise vote on any proposed action. To be effective, each Voting Participant Notification shall, with respect to such Voting Participant, (1) state the full legal name of such Voting Participant, as well as all contact information required of a Lender as set forth in Section 10.02(a)(ii) and (2) state the Dollar amount of participation interest purchased. Notwithstanding the above, the Administrative Agent acknowledges the participations noted on Schedule 2.01 as of the Closing Date and no Voting Participation Notification shall be required with respect to such participations. Subject to subsection (e) of this Section, the Borrower agrees Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.13 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 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.14 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an 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 (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 1 contract
Participations. Any Lender may at any timetime sell to one or more Persons participating interests in its Loans, without the consent of, Commitments or notice to, the Borrower or the Administrative Agent, sell participations to other interests hereunder (any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (eachsuch Person, a “Participant”) in minimum amounts of $5,000,000 (or all or a portion of such Lender’s rights and/or obligations under this Agreement remaining loans and commitments) subject to the consent of the Administrative Agent, the Issuing Lender (including all or for assignments of the Revolving Credit Facility only and (so long as no Event of Default has occurred and is continuing)) and the Borrower (which consent shall not be unreasonably withheld of delayed). In the event of a portion sale by a Lender of its Commitment and/or the Loans a participating interest to a Participant, (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (ia) such Lender’s obligations under this Agreement hereunder shall remain unchangedunchanged for all purposes, (iib) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations Borrower and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender, acting solely for this purpose hereunder and (c) all amounts payable by Borrower shall be determined as an agent of the Borrower (if such Lender had not sold such participation and such agency being solely for tax purposes), shall maintain at be paid directly to such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to such Participant by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification with respect to any event described in subsections Section 15.1 expressly requiring the unanimous vote of all Lenders or, as applicable, all affected Lenders. Borrower agrees that if amounts outstanding under this Agreement are due and payable (aas a result of acceleration or otherwise), (b) or (c) each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement and with respect to any Letter of Credit to the first proviso same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided that such right of set-off shall be subject to the obligation of each Participant to share with the Lenders and the Lenders agree to share with each Participant, as provided in Section 10.01 that affects such Participant7.5. Subject to subsection (e) of this Section, the Borrower also agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent Section 7.6 or 8 as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) provided that on the date of this Section. To the extent permitted by law, each participation no Participant also shall be entitled to any greater compensation pursuant to Section 7.6 or 8 than would have been paid to the benefits of participating Lender on such date if no participation had been sold and that each Participant complies with Section 10.08 7.6(d) as though if it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a Lenderan Assignee).
Appears in 1 contract
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Loan Parties or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender person or the Borrower Loan Parties or any of the Borrower’s Loan Parties’ Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s 's rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerLoan Parties, the Administrative Agent, the Lenders and the L/C Issuers Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement. Each Lender, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and (iv) such Lender shall continue to have the amount of the participation sold sole right to enforce its rights under this Agreement. Any Participant shall agree in writing to comply with all confidentiality obligations set forth in Section 10.07 as if such Participant by such was a Lender and the related interest amounts owing to such Participanthereunder. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees Loan Parties agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection Section (b) of this Section). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; , provided such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender, acting for this purpose as an agent of the Loan Parties, shall maintain at its offices a record of each agreement or instrument effecting any participation and a register for the recordation of the names and addresses of its Participants and their rights with respect to principal amounts and other Obligations from time to time (each a “Participation Register”). The entries in each Participation Register shall be conclusive absent manifest error and the Loan Parties, the Administrative Agent, the L/C Issuer and the Lenders may treat each Person whose name is recorded in a Participant Register as a Participant for all purposes of this Agreement (including, for the avoidance of doubt, for purposes of entitlement to benefits under Section 3.01, Section 3.04, Section 3.05 and Section 10.08”). The Participation Register shall be available for inspection by the Lead Borrower, the L/C Issuer and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Samples: Possession Credit Agreement (Pacific Sunwear of California Inc)
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower Company, any Borrower, the Revolving Swing Line Lender, the New Vehicle Floorplan Swing Line Lender, the Used Vehicle Floorplan Swing Line Lender, any L/C Issuer or the Administrative Agent, sell participations to any Person (other than (w) a Defaulting Lender, (x) a natural person or a holding company investment vehicle or trust for, or owned and operated for the primary benefit of a natural person, a Defaulting Lender or (y) the Borrower Company or any of the BorrowerCompany’s Affiliates or SubsidiariesSubsidiaries or (z) any competitor of the Company which has been identified in writing by the Company in a document that has been made available to all of the Lenders) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations Obligations, Revolving Swing Line Loans, New Vehicle Floorplan Swing Line Loans and/or Used Vehicle Floorplan Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowerCompany, the Borrowers, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation indemnity under Section 10.04(c) without regard to the existence of the names and addresses of each of its Participants, and the amount of the participation sold to such any participation. The Administrative Agent shall have no responsibility for determining whether any Participant by such Lender and the related interest amounts owing to such Participantis a competitor. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this AgreementAgreement and shall contain a representation and warranty (A) from the Lender selling the participation that the prospective participant is not a Competitor and (B) from the prospective participant that it is not primarily engaged in the business of owning or operating automobile dealerships; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower Company agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.01 and 3.04 to the same extent as if it were a Lender and 3.05 had acquired its interest by assignment pursuant to subsection (b) of this Section (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.05 and 10.13 as if it were an assignee under subsection (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it 162 acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 3.05 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.21 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural personPerson, a Defaulting Lender holding company, investment vehicle or trust established for, or owned and operated for the primary benefit of, a natural Person, or Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Revolving Line Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) Advances owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations obligations, and (iii) the Borrower, the Administrative Agent, the Lenders Issuing Bank and the L/C Issuers other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each LenderFor the avoidance of doubt, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), each Lender shall maintain at such Lender’s Lending Office a register be responsible for the recordation of the names indemnities under Sections 12.10(e) and addresses of each of its Participants, and the amount of the participation sold 13.07 with respect to such Participant any payments made by such Lender and the related interest amounts owing to such Participantits Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or other modification which affects such Participant and for which the consent of such Lender is required (as described in subsections (aSection 12.07), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 12.10 and 3.05 12.19 (subject to the requirements and limitations therein (it being understood that the documentation required under Section 12.10(f) shall be delivered by such Participant to the Lender granting such participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection Section 12.02(b); provided that such Participant (bA) agrees to be subject to the provisions of this SectionSections 2.07 as if it were an assignee under Section 12.02(b); and (B) shall not be entitled to receive any greater payment under Sections 12.10 or 12.19, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in any Requirement of 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 2.07 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 12.13 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 2.06(k) 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 the Advances or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under this Agreement) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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Participations. Any Lender Borrower acknowledges that the Bank may at -------------- from time to time sell participations in or, with Borrower's prior written consent (which Borrower agrees not to unreasonably withhold), assign all or any timeportion of the Loan to one or more financial institutions (each a "Participant") as participant or assignee of Bank in the Loan. In this regard, without Borrower agrees that Bank may, subject to the consent offollowing sentence, or notice to, from time to time provide financial and other information concerning the Borrower or the Administrative Agent, sell participations to each Participant as well as to any Person (or prospective participant. Bank agrees to exercise all reasonable efforts to keep any information delivered or made available by the Borrower confidential from anyone other than a natural personpersons employed or retained by Bank who are or are expected to become engaged in evaluating, a Defaulting Lender approving, structuring or administering the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (eachLoan, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that nothing herein shall prevent Bank from disclosing such information (i) such Lender’s obligations under this Agreement shall remain unchangedto any affiliate of Bank, (ii) such Lender shall remain solely responsible to upon the other parties hereto for the performance order of such obligations and any court or administrative agency, (iii) upon the Borrowerrequest or demand of any regulatory agency or authority having jurisdiction over Bank, the Administrative Agent(iv) which has been publicly disclosed, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender (v) in connection with any litigation relating to the Loan, this Agreement or any transaction contemplated hereby to which Bank or Borrower may be a party, (vi) to the extent reasonably required in connection with the exercise of any remedy hereunder, (vii) to Bank's legal counsel and independent auditors, and (viii) to any actual or proposed Participant or assignee of all or any part of the Loan hereunder, if such Lender’s rights and obligations under this Agreement. Each Lenderother Person, acting solely prior to such disclosure, agrees for this purpose as an agent the benefit of the Borrower (and to comply with the provisions of this Section 2.09. Any out of pocket costs or expenses, including attorneys' fees, incurred by Bank or any Participant in connection with the consummation of any such agency being solely for tax purposes), sale or assignment shall maintain at such Lender’s Lending Office a register for the recordation of the names and addresses of each of its Participants, and the amount of the participation sold to be borne by Bank and/or such Participant and not by such Lender and the related interest amounts owing to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a LenderBorrower.
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