Assignment and Participations Sample Clauses: 463 Samples

Appears in 5 contracts

Sources: Credit Agreement (Universal Hospital Services Inc), Credit Agreement (Universal Hospital Services Inc), Credit Agreement (Universal Hospital Services Inc)

Assignment and Participations. (a) ~~Subject~~ Borrower consents to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Agent (which ~~consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent~~ shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit ~~9.1(a)~~ M and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this ~~Section 9.1~~SECTION 10.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender." In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Commitment Percentage. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of a Revolving Credit Note, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Revolving Credit Notes in exchange for the Revolving Credit Notes being assigned. Notwithstanding the foregoing provisions of this ~~Section 9.1(a~~SECTION 10.1(A), any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the ~~consummation of which does not require consent of Borrower~~other Loan Documents to a Federal Reserve Bank; PROVIDED, however, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be ~~made~~ in an amount at least equal to $5,000,000, and with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the ~~scheduled amortization of the principal amount~~ final maturity date of any Loan in which such holder ~~participates or the final maturity date thereof~~participates, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.other

Appears in 3 contracts

Sources: Loan Agreement (Bti Telecom Corp), Loan Agreement (Bti Telecom Corp), Loan Agreement (Bti Telecom Corp)

Assignment and Participations. (a) ~~Subject~~ Any Lender may assign to one or more assignees all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of any of its Commitments and the Loans at the time owing to it); provided, however, that (i) the Administrative Agent (and in the case of an assignment of Revolving Loans or Revolving Loan Commitments, the L/C Issuer and Swingline Lender) must give its prior written consent to such assignment (which consent by the Administrative Agent shall not be required with respect to an assignment to a Lender (other than a Defaulting Lender), an Affiliate of a Lender (other than an Affiliate of a Defaulting Lender), an Approved Fund (other than an Approved Fund of a Defaulting Lender) and shall not, in each case, otherwise be unreasonably withheld or delayed, (ii) no such assignment shall be made to (A) any Defaulting Lender or any of its subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender or a subsidiary thereof or (B) a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person), (iii) the amount of the Commitments and/or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) with respect to the Revolving Loan, $5,000,000 and (y) with respect to the Term Loans and Incremental Term Loans, $1,000,000 and, in each case, in $250,000 increments thereof (or less (i) if constituting the entire remaining amount of such ▇▇▇▇▇▇’s Revolving Loan Commitment, Term Loan, and Incremental Term Loans, as applicable or (ii) with the consent of the Borrower and the Administrative Agent); provided, however, that, notwithstanding the foregoing, assignments to a Lender, an Affiliate of a Lender or an Approved Fund shall not be subject to the foregoing minimum assignment limitations, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance Agreement, together with, unless such assignment shall be to an Affiliate of such Lender or to an Approved Fund, a processing and recordation fee of $3,500 (except as waived by the Administrative Agent in any given case), (v) the assignee, if it shall not be a Lender immediately prior to the assignment, shall deliver to the Administrative Agent an Administrative Questionnaire, (vi) the assignee, if it shall not be a Lender immediately prior to the assignment, shall deliver to the Administrative Agent an acknowledgment to any existing agreement among lenders, (vii) notwithstanding anything herein to the contrary, no assignment may be made to Holdings, the Borrower or any Affiliate of Holdings or the Borrower, and (viii) except following the occurrence and during the continuance of a Specified Event of Default, any such assignment shall be subject to prior written consent by the Borrower, which consent shall not be required (A) with respect to an assignment of the Term Loans, if such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund and (B) with respect to an assignment of the Revolving Commitments and Revolving Loans, if such assignment is to another Revolving Lender, and which consent shall not otherwise be unreasonably withheld or delayed (and which shall be deemed to have been given if Borrower has not responded within ten (10) Business Days after having received notice and a written request for such consent). Upon acceptance and recording pursuant to paragraph (d) of this Section 10.1, from and after the effective date specified in each Assignment and Acceptance Agreement, (A) the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance Agreement, have the rights and obligations of a Lender under this Agreement and (B) the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.11, 2.12, 12.3 and 12.4 as well as to any Fees accrued for its account and not yet paid); provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that ▇▇▇▇▇▇’s having been a Defaulting Lender. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, each L/C Issuer, the Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans, as applicable, in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. (b) By executing and delivering an Assignment and Acceptance Agreement, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that its Revolving Loan Commitment and the outstanding balances of its Pro Rata Share of the Term Loans, Incremental Term Loans, Swingline Loans and the Revolving Loan, in each case without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance Agreement; (ii) except as set forth in clause (i) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial condition of any Loan Party or any Restricted Subsidiary thereof or the performance or observance by any Loan Party or any Restricted Subsidiary thereof of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that it is legally authorized to enter into such Assignment and Acceptance Agreement; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent Financial Statements referred to in Section 4.4(a) or delivered pursuant to Section 5.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance Agreement; (v) such assignee will independently and without reliance upon Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and authorizes Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this ~~Section 9.1~~Agreement are required to be performed by it as a Lender. (c) Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Acceptance Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount and related interest amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, Administrative Agent and the Lenders shall treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. Notwithstanding anything to the contrary, any assignment of any Loan shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrower, Administrative Agent and any Lender (solely with respect to its Loans and/or Commitment), at any reasonable time and from time to time upon reasonable prior notice. (d) Upon its receipt of a duly completed Assignment and Acceptance Agreement executed by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender hereunder) and if required the written consent of ▇▇▇▇▇▇▇▇ and Administrative Agent to such assignment, Administrative Agent shall (i) accept such Assignment and Acceptance Agreement and (ii) record the information contained therein in the Register. No assignment shall be effective unless it has been recorded in the Register as provided in this clause (d). (e) Any Lender may ~~make an assignment to a Qualified Assignee~~ at any time, without consent of, or notice to, the Borrower or the Administrative Agent, sell participations into one or more banks or other entities other than (1) (A) any Defaulting Lender or any of its subsidiaries, at or any ~~time~~ Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender or ~~times~~a subsidiary thereof or (B) a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the ~~Loan Documents~~primary benefit of, a natural person) (each, a “Participant”) in all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other entities shall be entitled to the benefit of the cost protection provisions contained in Sections 2.11 and 2.12 (subject to the requirements and limitations of such Sections, including Section 2.11(g) to the same extent as if they were Lenders (it being understood that any documentation required under Section 2.11(g) shall be delivered solely to the participating Lender) but, with respect to any particular Participant, to no greater extent than the Lender that sold the participation to such participant, unless the participation is made with the Borrower’s prior written consent and such entitlement to a greater payment arose from a Change in Tax Law occurring after the participant became a participant hereunder and (iv) the Borrower, Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such ▇▇▇▇▇▇’s rights and obligations under this Agreement, and such Lender shall retain the sole right to enforce the obligations of the Borrower relating to the Loans or Letter of Credit Obligations and to approve any ~~Commitment~~ amendment, modification or waiver of any provision of this Agreement (other than as expressly set forth below in the final proviso to this paragraph). Notwithstanding anything herein to the contrary, no participation may be sold to any Loan Party, any holder of Subordinated Indebtedness, any holder of any Indebtedness that is secured by Liens that have been contractually subordinated to the Liens securing the Obligations or any ~~portion thereof or interest therein, including~~ Affiliate of any ~~Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require~~ of the foregoing Persons without the prior written consent of ~~Agent (~~Administrative Agent, which consent ~~shall not~~ may be ~~unreasonably~~ withheld ~~or delayed with respect to a Qualified Assignee)~~ in Administrative Agent’s sole discretion and, ~~so long as no Event of Default has occurred and is then continuing~~in any event, ~~Borrower (which consent shall not be unreasonably withheld or delayed; provided~~if granted, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) may be conditioned on such ~~assignee~~ terms and conditions as Administrative Agent shall require in its sole discretion, including, without limitation, a limitation on the aggregate amount of Loans and Commitments which may be participated to such Person and/or its Affiliates and/or limitations on such Person’s and/or its Affiliates’ voting and consent rights and/or rights to attend Lender ~~representing~~ meetings or obtain information provided to Lenders. Each Lender granting a participation hereunder shall maintain, as a non-fiduciary agent of the Borrower, a register as to the ~~assigning Lender~~ participations granted and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender transferred under this Section ~~9.1, the assignee shall have, to the extent of such assignment,~~ containing the same ~~rights, benefits and obligations~~ information specified in Section 10.1(c) on the Register as ~~all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a),~~ if the ~~consummation of which does not require consent of Borrower. (b) Any participation by~~ each Participant were a Lender ~~of all or any part of its Commitments shall be made with~~ (the ~~understanding~~ “Participant Register”); provided that ~~all amounts payable by Borrower hereunder shall be determined as if that~~ no Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation to disclose all or ~~duty~~ 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 ~~participant. Neither Agent nor~~ 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 Treasury Regulations Section 5f.103-1(c) and Proposed Treasury Regulations Section 1.163-5(b) (or any amended or successor version); provided further, that no Lender shall enter into any agreement with any Participant that will permit such Participant to influence or control the voting rights of such Lender except with regard to (a) reductions of principal, interest or fees owing to such Participant (other than ~~the Lender selling a participation) shall have~~ waivers, reductions or extensions of any ~~duty~~ mandatory prepayments or default interest or MFN protection or any amendment to any ~~participant~~ financial ratio (or any defined term directly or indirectly used therein), even if the effect of such amendment would be to reduce the rate of interest on any Loan or other Obligation or to reduce any fee payable hereunder), (b) extensions of final scheduled maturity or times for payment of interest or fees owing to such Participant (other than waivers of default interest, defaults or events of default, waivers or extensions of any mandatory prepayments, MFN protection or default interest) and ~~may continue~~ (c) unless otherwise permitted hereunder, releases of Collateral or guarantees requiring the approval of all Lenders. (f) In addition, any Lender may, without the consent of the Administrative Agent or Borrower, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to ~~deal solely with the Lender selling~~ secure obligations of such Lender, including any pledge or assignment of a ~~participation as if~~ security interest to secure obligations to a Federal Reserve Bank or other central bank, and this Section 10.1 shall not apply to any such pledge or assignment of a security interest; provided that no such ~~sale had occurred.~~pledge or assignment of a security interest shall release a Le

Appears in 3 contracts

Sources: Credit and Guaranty Agreement (RadNet, Inc.), First Lien Credit and Guaranty Agreement (RadNet, Inc.), First Lien Credit and Guaranty Agreement (RadNet, Inc.)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified ~~Assignee) and, so long as no Event of Default has occurred~~ Assignee and ~~is then continuing, Borrower (~~which consent ~~shall~~ is not ~~be unreasonably withheld~~ required by an assignment between Lenders or ~~delayed; provided, that any assignment~~ from a Lender to ~~Black Diamond Capital Management~~ an Affiliate of a Lender or ~~any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h~~an Approved Fund) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit ~~9.1(a)~~ 9.1 and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent and the Borrower that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) except with respect to any assignment by a Lender to an Affiliate or an Approved Fund of such Lender, after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; ~~and~~ (iv) ~~include~~ require a payment to Agent of an assignment fee of $~~3,500~~3,500 and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower (which consent is not required for an assignment between Lenders or from a Lender to an Affiliate or an Approved Fund of a Lender), which shall not be unreasonably withheld or delayed. Notwithstanding the above, Agent may in its sole and absolute discretion permit any assignment by a Lender to a Person or Persons that are not Qualified Assignees, subject to Borrower’s consent rights as set forth above. In the case of an assignment by a Lender that has become effective under this Section 9.1, (i) the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ all other Lenders hereunder and (aii) ~~have been complied with~~the assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof and the Loans, Letter of Credit Obligations and other interests assigned by it from and after the effective date of such assignment. ~~Agent~~ Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender.” In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), (a) any Lender may at any time pledge the ~~consummation~~ Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, (b) any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor or pledge such Obligations and rights to a trustee for the benefit of ~~which does~~ its investors and (c) any Lender may assign the Obligations to an Affiliate of such Lender or to a Person that is a Lender prior to the date of such assignment. Notwithstanding any other provision of this Agreement to the contrary, neither the Lenders nor any of their successors or assigns shall assign or transfer any interest herein without obtaining a representation from such successor or assign that any such assignment or transfer would not ~~require consent~~ result in a non-exempt prohibited transaction under Section 406 of ~~Borrower~~ERISA or Section 4975 of the IRC with respect to the Plans. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~2.8, ~~1.15~~2.9, ~~1.16~~ 9.3 and ~~9.8~~10.1, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "“Lender"”; provided, (i) that any such participant shall not be entitled to receive any greater payment under Section 2.8 or Section 2.9 than the Lender granting such participation would have been entitled to receive with respect to the portion of its Commitment and Loans so participated; and (ii) with respect to Section 2.9, only to the extent such participant delivers the tax forms such Lender is required to collect under Section 2.9. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor~~ or any other ~~Credit~~ Loan Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Loan Party shall assist each Lender permitted to sell assignments or participations under this Section 9.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments on substantially the same terms as and consistent with this Agreement and the other Loan Documents as shall be requested and, prior to completion of the primary syndication (as described in the Freeport Fee Letter), the prompt preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants, all on a timetable reasonably established by Agent in its sole discretion. Each Loan Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Loan Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 4.5. Agent shall maintain, on behalf of Borrower, in its offices located in Chicago, Illinois a “register” for recording the name, address, commitment and Loans owing to each Lender. The entries in such register shall be conclusive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrower, Agent and each Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Lender for all purposes of this Agreement. The register described herein shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice. Notwithstanding any other provision of this Agreement to the contrary, neither the Lenders nor any of their successors or assigns shall assign or transfer any interest herein without obtaining a representation from such successor or assign that any such assignment or transfer would not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the IRC with respect to the Plans. (e) A Lender may furnish any information concerning Loan Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants (and prospective assignees and prospective participants) confidentiality covenants substantially equivalent to those contained in Section 10.13.

Appears in 3 contracts

Sources: Credit Agreement (Addus HomeCare Corp), Credit Agreement (Addus HomeCare Corp), Credit Agreement (Addus HomeCare Corp)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~8.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Applicable Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee~~) and~~, ~~so long as no Event of Default has occurred~~ and ~~is then continuing, Borrower (~~which consent ~~shall~~ is not ~~be unreasonably withheld~~ required for an assignment between Lenders or ~~delayed; provided, that any assignment~~ from a Lender to ~~Black Diamond Capital Management or any~~ an Affiliate of ~~its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h~~a Lender) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit ~~9.1(a)~~ 8.1 and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Applicable Agent); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Applicable Agent and the Borrowers that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) except with respect to any assignment by a Lender to an Affiliate of such Lender, after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) ~~include~~ require a payment by the assigning Lender or assignee Lender, but not any Credit Party, to Applicable Agent of an assignment fee of $~~3,500~~3,500 and (v) so long as no Event of Default has occurred and is continuing, require the consent of Applicable Borrower Representative (which consent is not required for an assignment between Lenders or from a Lender to an Affiliate of a Lender that is controlled by or under common control with such Lender), which shall not be unreasonably withheld or delayed. Notwithstanding the above, Applicable Agent may in its sole and absolute discretion permit any assignment by a Lender to a Person or Persons that are not Qualified Assignees, subject to Applicable Borrower Representative’s consent rights as set forth above. In the case of an assignment by a Lender that has become effective under this Section ~~9.1~~8.1, (i) the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ all other Lenders hereunder and (ii) the assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof and the Loans, Letter of Credit Obligations and other interests assigned by it from and after the effective date of such assignment. Borrowers hereby acknowledge and agree that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender”; provided that prior to the occurrence of an Event of Default which is continuing, no assignee shall be entitled to receive any greater amount pursuant to Section 1.12 than the Lender from which such interest in this Agreement was assigned would have been entitled to receive. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Applicable Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Applicable Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Applicable Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 8.1(a), (a) ~~have been complied with. Agent hereby agrees~~ any Lender may at any time pledge the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to ~~provide Borrower with commercially reasonable~~ a Federal Reserve Bank or Bank of Canada, (b) any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor or pledge such Obligations and rights to a trustee for the benefit of its investors and (c) any Lender may assign the Obligations to an Affiliate of such Lender or to a Person that is a Lender prior ~~written notice~~ to the date of ~~any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower~~such assignment. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.11, ~~1.15~~1.12, ~~1.16~~ 8.3 and ~~9.8~~9.1, ~~Borrower acknowledges~~ Borrowers acknowledge and ~~agrees~~ agree that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender"” (and as a US Lender, US Tranche A Lender, ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Tranche A Lender, Canadian Tranche A1 Lender, US Foreign Lender and Canadian Foreign Lender, as the case may be); provided that prior to the occurrence of an Event of Default which is continuing, no participant shall be entitled to receive any greater amount pursuant to Section 1.12 than the Lender from which such participation was acquired would have been entitled to receive. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor~~ or any other Credit Party shall have any obligation or duty to any participant. ~~Neither~~ No Agent ~~nor any~~ or Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 8.1, no Lender shall, as between Borrowers and that Lender, or Applicable Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party shall assist each Lender permitted to sell assignments or participations under this Section 8.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be reasonably requested and the prompt preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants, all on a timetable reasonably established by Applicable Agent in its sole discretion. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.5. US Agent shall maintain, on behalf of US Borrowers, in its offices located at GE Corporate Financial Services, ▇▇▇ ▇▇▇▇▇▇▇ ▇, P.O. Box 5201, Norwalk, CT 06856 a “register” for recording the name, address, commitment and Loans owing to each US Lender. The entries in such register shall be conclusive evidence of the amounts due and owing to each US Lender in the absence of manifest error. US Borrowers, US Agent and each US Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a US Lender for all purposes of this Agreement. The register described herein shall be available for inspection by US Borrowers and any US Lender at any reasonable time upon reasonable prior notice. Canadian Agent shall maintain, on behalf of Canadian Borrowers, in its offices located at GE Corporate Financial Services, ▇▇▇ ▇▇▇▇▇▇▇ ▇, P.O. Box 5201, Norwalk, CT 06856 a “register” for recording the name, address, commitment and Loans owing to each Canadian Lender. The entries in such register shall be conclusive evidence of the amounts due and owing to each Canadian Lender in the absence of manifest error. Canadian Borrowers, Canadian Agent and each Canadian Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Canadian Lender for all purposes of this Agreement. The register described herein shall be available for inspection by Canadian Borrowers and any Canadian Lender, at any reasonable time upon reasonable prior notice. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 9.13. (f) Notwithstanding Sections 8.1(b) above, each Canadian Lender or other Person holding an interest in a Canadian Loan or a Canadian Letter of Credit shall give Canadian Borrower Representative prior written notice of: (i) any assignment, conveyance, grant, sale or other transfer of any kind (including by way of grant of participation) of any interest in any Canadian Loan or any Canadian Letter of Credit to a Person that is not a Canadian Person; (ii) any change in the office or other place of business through which such Person holds any interest in any Canadian Loan or Canadian Letter of Credit such that the Person is no longer considered a Canadian Person; and (iii) any change in the status of such Person such that such Person ceases to be a Canadian Person. In any such case, such notice shall also state, to the best of the knowledge of the transferor. whether the transferee (in the case of (i)) or the Person (in the case of (ii) or (iii)) is entitled to a reduced rate of Canadian withholding tax under a double tax treaty between Canada and the jurisdiction of residence of such Person.

Appears in 2 contracts

Sources: Credit Agreement (Exopack Holding Corp), Credit Agreement (Exopack Holding Corp)

Assignment and Participations. (a) Subject to and in accordance with the terms of this Section ~~9.1~~11.1, any Lender may make an assignment to or a ~~Qualified Assignee of, or sell~~ sale of participations in, at any time or times, the ~~Loan Documents~~Financing Agreements, ~~Loans, Letter of Credit Obligations~~ any Loans and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: : (i) be in a minimum amount of $5,000,000 with respect to Revolving Loans and $1,000,000 with respect to Term Loans; (ii) require the consent of ~~Agent~~ Agent, Issuing Lender, Swingline Lender and Borrower; provided that: (~~which~~ A) such consent is not to be unreasonably withheld, conditioned or delayed; (B) the consent of Issuing Lender and Swingline Lender shall not be ~~unreasonably withheld or delayed~~ required with respect to assignments of Term Loans; (C) the consent of Borrower shall not be required if: (1) a ~~Qualified Assignee) and, so long as no~~ Payment/Insolvency Event of Default has occurred and is ~~then~~ continuing, ; (2) such assignment is to an Eligible Transferee; or (3) Borrower does not object to such assignment within ten (~~which consent shall~~ 10) Business Days of receipt of notice of such assignment; (iii) not be ~~unreasonably withheld or delayed; provided, that any assignment~~ to ~~Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h~~a Prohibited Transferee; (iv) ~~or 8.1(i) has occurred and is then continuing), and~~ be effected by the execution of an ~~assignment agreement~~ Assignment and Assumption Agreement; (~~an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii~~v) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the ~~applicable~~ Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; and (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (ivvi) include a payment from such assignee to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section ~~9.1~~11.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender” hereunder. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the Commitment. In the event any Lender assigns or ~~sale contemplated~~ otherwise transfers all or any part of the Obligations, such Lender shall provide prior notice to Borrower and Borrower shall, upon the request of Agent or such Lender, execute new notes in exchange for the notes, if any, being assigned. Borrower agrees from time to time to execute notes (in form and substance satisfactory to Agent, acting reasonably) evidencing the Loans if requested by Agent. Notwithstanding the foregoing provisions of this Section ~~9.1(a~~11.1(a), any Lender may at any time pledge the ~~consummation~~ Obligations held by it and such Lender’s rights under this Agreement and the other Financing Agreements to a Federal Reserve Bank, the Bank of ~~which does not require consent of Borrower~~Canada or the Canada Deposit Insurance Corporation or foreign equivalent; provided, that no such pledge shall release such Lender from such Lender’s obligations hereunder or under any other Financing Agreement or substitute any such pledgee or assignee for such Lender as a party hereto. (b) Any sale of a participation by a Lender of all or any part of its ~~Commitments~~ Commitment or Loans shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or ~~Fees~~ fees payable with respect ~~to,~~ to any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this ~~Agreement, the Collateral Documents~~ Agreement or the other ~~Loan Documents~~Financing Agreements). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than ~~the~~ a Lender selling a participation) shall have any duty to any participant and may continue to deal solely with ~~the Lender~~ Lenders selling a participation as if no such sale had occurred. No consent of Borrower, Agent or Issuing Lender is required with respect to the sale of a participation by a Lender of all or any part of its Commitment or Loans; provided that each Lender shall provide Agent and Borrower with prior written notice of each sale of a participation. No sale of a participation by a Lender of all or any part of its Commitment or Loans shall be made to a Prohibited Transferee. (c) Each Credit Party shall assist any Lender permitted to sell assignments or participations under this Section 11.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party shall certify the correctness, completeness and accuracy of all descriptions of it and its respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials. (d) A Lender may furnish any information concerning a Credit Party in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants), in each case, other than to any Prohibited Transferee, provided such Persons agree to maintain the confidentiality of such information in accordance with Section 7.11(b). (e) No Credit Party may assign its rights under the Financing Agreements and any other document referred to herein or therein without the prior written consent of Agent and all Lenders. (f) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Agent, the applicable pro rata share of Loans previously requested, but not funded by, the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (A) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent, the Issuing Lender, the Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (B) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letter of Credit Accommodations and Swingline Loans in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

Appears in 2 contracts

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

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, ~~Loans, Letter of Credit Obligations~~ Revolving Loan Advances and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or ~~delayed with respect to a Qualified Assignee) and~~delayed, ~~so long as no Event of Default has occurred~~ and ~~is then continuing, Borrower (which consent~~ shall not be ~~unreasonably withheld or delayed; provided, that any~~ required in the case of an assignment to ~~Black Diamond Capital Management~~ a current Lender or ~~any~~ Affiliate of ~~its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h~~a current Lender) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable ~~Loans~~ portion of the Revolving Loan Advances to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) constitute an assignment of Commitments (or, if the Commitments have terminated, principal amount of Revolving Loan Advances) not less than $1,000,000 (or, if less, only if such assignment is of all of the assigning Lender’s Commitment or Revolving Loan Advances, as applicable, and the assignee is an existing Lender); (iv) in the case of any partial assignment, after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 1,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~1,000,000; and (ivv) include a payment to Agent of an assignment fee of $3,500. Each assignee which is not already a Lender shall, concurrently with the delivery of the applicable Assignment Agreement, deliver to Agent a completed administrative questionnaire with such information concerning such assignee as Agent may reasonably require. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of the Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event any Lender assigns or ~~sale contemplated by~~ otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify the Borrower and the Borrower shall, upon the request of such Lender, execute new Revolving Notes in exchange for the Revolving Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation~~ Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. The Agent shall maintain at its address referred to in Section 10.11 and Annex E a copy of ~~which does~~ each Assignment Agreement delivered to and accepted by it and shall record in the Register the names and addresses of the Lenders and the principal and interest amount of the Loans owing to each Lender from time to time and the Commitments of each Lender. Any assignment pursuant to this Section 9.1 shall not ~~require consent of Borrower~~be effective until such assignment is recorded in the Register. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by the Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Revolving Loan Advance in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Revolving Loan Advance in which such holder participates or the final maturity date thereof, ; and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.9, ~~1.15~~1.11, ~~1.16~~ 1.12 and ~~9.8,~~ 9.8 the Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of the Borrower to the participant and the participant shall be considered to be a "“Lender"”; provided, that the Borrower shall not be obligated to make under Section 1.11 payments to the participants of a Lender to the extent such payments, together with related amounts payable to such Lender, would exceed the amount the Borrower would have been obligated to pay to such Lender in the absence of such participation. Except as set forth in the preceding ~~sentence,~~ sentence neither the Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. Any Lender that sells to any Person any participation interest in any of such Lender’s rights and obligations under the Loan Documents, the Revolving Loan or a Commitment, acting as agent of the Borrower solely for this purpose and for tax purposes, shall establish and maintain a register that will contain the recordation of the information required pursuant to Section 10.1 hereof. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between the Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Revolving Loan Advances or other Obligations owed to such Lender. (d) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 10.9. (e) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and the Borrower, the option to provide to the Borrower all or any part of any Revolving Loan Advances that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Revolving Loan Advance; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Revolving Loan Advance, the Granting Lender shall be obligated to make such Revolving Loan Advance pursuant to the terms hereof. The making of a Revolving Loan Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Revolving Loan Advance were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, the Borrower and Agent, assign all or a portion of its interests in any Revolving Loan Advances to the Granting Lender or to any financial institutions (consented to by the Borrower and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Revolving Loan Advances and (ii) disclose on a confidential basis any non-public information relating to its Revolving Loan Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(e) may not be amended without the prior written consent of each Granting Lender, all or any of whose Revolving Loan Advances are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 2 contracts

Sources: Revolving Credit Agreement, Revolving Credit Agreement (Blockbuster Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may upon notice to Borrowers make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) ~~after giving effect to any such partial assignment, the assignee Lender shall have Commitments~~ be in an a minimum aggregate amount ~~at least~~ equal to $~~5,000,000 and~~ 1,000,000 or, if less, the ~~assigning Lender shall have retained Commitments in an~~ entire commitment or the principal amount ~~at least equal to $2,500,000~~of the loan being assigned; ~~and~~ (iv) include a payment to Agent of an assignment fee of $US$3,500. Agent's refusal to accept an assignment to a Person that would be a Non-Funding Lender or an Impacted Lender, or the imposition of conditions or limitations (including limitations on voting) upon assignments to such Persons, shall not be deemed to be unreasonable. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice~~ all other Lenders hereunder; provided that so long as no Event of Default has occurred and is continuing, in the case of an assignment by a US Revolving Lender or a US Term Lender, if such assignee is a non-resident of the United States for purposes of the Revenue Code in respect of any ~~assignment~~ payment that may be made by any US Borrower, such assignee shall not be entitled to any gross-up payment or ~~sale contemplated by this~~ indemnification pursuant to Section ~~9.1(a~~1.14 from such US Borrower on account of any withholding taxes eligible on such payment. So long as no Event of Default has occurred and is continuing, without the Borrowers' consent (acting reasonably), no Lender may assign its Commitment to any person in the ~~consummation~~ business of ~~which does~~ owning or operating ships transporting bulk cargo on the Great Lakes or any subsidiary of such a person. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees that any assignment shall give rise to a direct obligation of such Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not ~~require consent~~ joint and shall be limited to such Lender's Pro Rata Share of ~~Borrower~~the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify the applicable Borrower and such Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ the Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). ~~Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8,~~ No Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any or other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between any Borrower and such Lender, or Agent and such Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by a Borrower shall only be certified by such Borrower as having been prepared by such Borrower in compliance with the representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning the Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants) and to the other Secured Parties; provided, that such Lender shall obtain from such assignees or participants or such other Secured Parties confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an "SPV"), identified as such in writing by the Granting Lender to Agent and the Borrowers, the option to provide to a Borrower all or any part of any Loans that such Granting Lender would otherwise be obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan; and (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPV may (i) with notice to, but without the prior written consent of, the Borrowers and Agent assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPV to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPV. This Section 9.1(f) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPV at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 2 contracts

Sources: Credit Agreement (Rand Logistics, Inc.), Credit Agreement (Rand Logistics, Inc.)

Appears in 2 contracts

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

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~8.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee~~) and~~, ~~so long as no Event of Default has occurred~~ and ~~is then continuing, Borrower (~~which consent ~~shall~~ is not ~~be unreasonably withheld~~ required for an assignment between Lenders or ~~delayed; provided, that any assignment~~ from a Lender to ~~Black Diamond Capital Management~~ an Affiliate of a Lender or ~~any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant~~ to ~~Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h~~an Approved Fund with respect to a Lender) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit ~~9.1(a)~~ 8.1 and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent and the Borrower that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) except with respect to any assignment by a Lender to an Affiliate of such Lender or to an Approved Fund with respect to such Lender, after giving effect to any such partial assignment, the assignee Lender shall have ~~Commitments~~ Revolving Loan Commitment in an amount at least equal to $5,000,000 and the assigning Lender shall have retained ~~Commitments~~ Revolving Loan Commitment in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) ~~include~~ require a payment to Agent of an assignment fee of $~~3,500~~3,500 and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower (which consent is not required for an assignment between Lenders or from a Lender to an Affiliate of a Lender or to an Approved Fund with respect to a Lender that is controlled by or under common control with such Lender), which shall not be unreasonably withheld or delayed; provided that Borrower shall not be deemed to be unreasonable in withholding its consent based on negative historical experience that Sponsor or Credit Parties have had with such potential Qualified Assignee. Notwithstanding the above, Agent may in its sole and absolute discretion permit any assignment by a Lender to a Person or Persons that are not Qualified Assignees, subject to Borrower’s consent rights as set forth above. In the case of an assignment by a Lender that has become effective under this Section ~~9.1~~8.1, (i) the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ all other Lenders hereunder and (ii) the assigning Lender shall be relieved of its obligations hereunder with respect to its Revolving Loan Commitment or assigned portion thereof and the Loans, Letter of Credit Obligations and other interests assigned by it from and after the effective date of such assignment. Borrower hereby acknowledges and agrees that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender.” In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 8.1(a), (a) ~~have been complied with. Agent hereby agrees~~ any Lender may at any time pledge the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to ~~provide Borrower with commercially reasonable~~ a Federal Reserve Bank, (b) any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor or pledge such Obligations and rights to a trustee for the benefit of its investors and (c) any Lender may assign the Obligations to an Affiliate of such Lender or to a Person that is a Lender prior ~~written notice~~ to the date of ~~any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower~~such assignment. (b) Any participation by a Lender of all or any part of its ~~Commitments~~ Revolving Loan Commitment shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13, 1.15, 1.16~~ 1.8 and ~~9.8~~8.3, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "“Lender". .” Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor~~ or any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 8.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party shall reasonably assist each Lender permitted to sell assignments or participations under this Section 8.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be reasonably requested. Agent shall maintain, on behalf of Borrower, in its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ a “register” for recording the name, address, commitment and Loans owing to each Lender. As between Agent and Lenders, the entries in such register shall be conclusive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrower, Agent and each Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Lender for all purposes of this Agreement. The register described herein shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice. Notwithstanding any other provision of this Agreement to the contrary, neither the Lenders nor any of their successors or assigns shall assign or transfer any interest herein without obtaining a representation from such successor or assign that any such assignment or transfer would not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the IRC with respect to the Plans. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 9.13. (f) Nothing contained in this Section 8.1 shall require the consent of any party for GE Capital to assign any of its rights in respect of any Swap Related Reimbursement Obligation.

Appears in 2 contracts

Sources: Credit Agreement (Accuro Healthcare Solutions, Inc.), Credit Agreement (Accuro Healthcare Solutions, Inc.)

Assignment and Participations. (a) ~~Subject~~ The Credit Parties signatory hereto consent to the ~~terms~~ sale of ~~this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell~~ participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit ~~9.1(a~~-------------------- ------- 9.1 (a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, ------ Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee ----------- shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ Notwithstanding the foregoing, an assignment by a Lender to a Qualified Assignee under common ownership and control with such Lender does not require Agent's consent and is not subject to the $3,500 assignment fee. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender." In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may -------------- at any time pledge the ~~consummation~~ Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such -------- pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. Credit Parties' consent to an assignment of ~~which does~~ Commitments is not ~~require~~ required (i) if the assignee is a Qualified Assignee or (ii) if the assignee is not a Qualified Assignee, but an Event of Default has occurred and is continuing. Agent's consent to an assignment of ~~Borrower~~Commitments is not required if the assignment is made by a Lender to one or more Qualified Assignees and such sale is made in connection with a sale of all or substantially all of that Lender's loan portfolio. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation (other than a participant that is a majority-owned Subsidiary of the parent of such Lender) shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, ~~1.16~~ 1.16(a) and (b) and 9.8, Borrower acknowledges and agrees ---------------------------- --- --- that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". ." Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 2 contracts

Sources: Credit Agreement (Icon Health & Fitness Inc), Credit Agreement (Icon Health & Fitness Inc)

Assignment and Participations. (a) ~~Subject~~ The Borrower consents to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender’s assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, ~~Loans~~Advances and any Revolving Credit Commitment, Letter of Credit ~~Obligations and any Commitment~~ Obligations, or of any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) ~~require the consent of Agent (which consent shall not~~ be ~~unreasonably withheld or delayed with respect~~ to ~~a Qualified Assignee) and, so long as no Event of Default has occurred~~ an Eligible Assignee and ~~is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates~~ shall require ~~the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and~~ the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, the Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and the Agent that it is purchasing the applicable ~~Loans~~ Revolving Credit Advances or Letter of Credit Obligations to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the ~~assignee~~ assigning Lender shall have ~~Commitments~~ retained a Revolving Credit Commitment in an amount at least equal to $~~5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000~~5,000,000; and (iv) include a payment to the Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Revolving Credit Commitment or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of the Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Advances hereunder shall be several and not joint and shall be limited to such Lender’s Revolving Credit Commitment. In the event the Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of a Note, the Agent or any such Lender shall so notify the Borrower and the Borrower shall, upon the request of the Agent or such Lender, execute new Notes in exchange for the Notes being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge or assign all or any portion of such Lender’s rights under this Agreement and the ~~consummation of which does not require consent of Borrower~~other Loan Documents to a Federal Reserve Bank (provided, however, that no such pledge or assignment shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document). (b) Any participation by a Lender of all or any part of its ~~Commitments~~ Revolving Credit Commitment shall be ~~made~~ in an amount at least equal to $5,000,000, and with the understanding that all amounts payable by the Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such ~~participation~~ participation, unless such holder is an Affiliate of such Lender, shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any ~~Loan~~ Advance in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any ~~Loan~~ Advance in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.12, ~~1.15~~1.14, ~~1.16~~ 1.15 and 9.8, the Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of the Borrower to the participant and the participant shall be considered to be a "“Lender"”. Except as set forth in the preceding ~~sentence, neither~~ sentence the Borrower ~~nor any other Credit Party~~ shall not have any obligation or duty to any participant. Neither the Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between the Borrower and that Lender, or the Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Advances, the Notes or other Obligations owed to such Lender. (d) The Borrower shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be reasonably requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. The Borrower shall certify the correctness, completeness and accuracy of all descriptions of the Borrower and its affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by the Borrower shall only be certified by the Borrower as having been prepared by the Borrower in compliance with the representations contained in Section 3.4. (e) A Lender may furnish any information concerning the Borrower in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants). Each Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 10.13. (f) So long as no Event of Default shall have occurred and be continuing, no Lender shall assign or sell participations in any portion of its Advances or Revolving Credit Commitment to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.15(a), increased costs under Section 1.15(b), an inability to fund LIBOR Loans under Section 1.15(c), or withholding taxes in accordance with Section 1.15(d). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle wholly owned by the Granting Lender (an “SPC”), identified as such in writing by the Granting Lender to the Agent and the Borrower, the option to provide to the Borrower all or any part of any Advances that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Advance; (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof and (iii) the Borrower shall not be liable for any obligations to the SPC or the Granting Lender under Section 1.15 that would not have been incurred if the Granting Lender had not exercised its right to utilize the SPC structure contemplated hereby. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Advance were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Agent assign all or a portion of its interests in any Advances to the Granting Lender or to any financial institutions (consented to by the Borrower and the Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Advances are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 2 contracts

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

Appears in 2 contracts

Sources: Credit Agreement (Otelco Inc.), Credit Agreement (Otelco Telecommunications LLC)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a ~~Qualified Assignee~~ Person of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed; provided that no such consent shall be required for an assignment to a Qualified Assignee. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 2 contracts

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

Assignment and Participations. (a) ~~Subject~~ The Credit Parties signatory hereto consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Agent (which ~~consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent~~ shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "~~Assignment Agreement")~~ ASSIGNMENT AGREEMENT" substantially in the form attached hereto as ~~Exhibit 9.1(a)~~ EXHIBIT N and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable ~~Loans~~ Loans, Letter of Credit Obligation and Commitment (or portion thereof) to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Agent by the assignee or assignor (as they may agree) of an assignment fee of $3,500. In the case of an assignment by a Lender under this ~~Section~~ SECTION 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of a Note, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes being assigned. Notwithstanding the foregoing provisions of this ~~Section~~ SECTION 9.1(a), any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the ~~consummation~~ other Loan Documents to a Federal Reserve Bank; PROVIDED, HOWEVER, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. Notwithstanding anything hereunder to the contrary, GE Capital shall not make any assignment of ~~which does not require consent~~ all or any portion of ~~Borrower~~its interests in the Loans, the Letter of Credit Obligations or the Commitments to any of Fleet Capital, Hell▇▇ ▇▇▇ancial, Congress Financial or Bank of America Business Credit until after July 15, 1997 (if ever). (b) Any participation by a Lender of all or any part of its Commitments shall be ~~made~~ in an amount at least equal to $5,000,000, and with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of ~~Sections~~ SECTIONS 1.11, 1.13, ~~1.15, 1.16~~ 1.14 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 2 contracts

Sources: Credit Agreement (Parlux Fragrances Inc), Credit Agreement (Parlux Fragrances Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of ~~Agent (~~Agent, which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) , and, so long as no Default or Event of Default has occurred and is ~~then~~ continuing, the Borrower (Representative, which consent shall not be unreasonably withheld or ~~delayed~~delayed with respect to a Qualified Assignee; provided, however, that ~~any assignment~~ no such consent shall be required with respect to ~~Black Diamond Capital Management or any~~ a Qualified Assignee that is a wholly-owned Affiliate of ~~its Affiliates shall require the consent of Borrower~~ such Lender, so long as ~~no Event~~ at the time of ~~Default pursuant~~ transfer to such Affiliate and upon such Affiliate becoming a Lender, it shall not be entitled to any payment from any Borrower and any other Credit Party under Sections ~~8.1(a)(i), 8.1(a)(ii), 8.1(h)~~ 1.15 or ~~8.1(i) has occurred and is then continuing),~~ 1.16; and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of each Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event any Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, any such Agent or any such Lender shall so notify Borrower Representative and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation~~ Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. Any foreign Person that seeks to become a Lender under this Agreement shall provide a Certificate of ~~which does not require consent~~ Exemption to Borrower Representative and Agent prior to becoming a Lender hereunder. No foreign Person may become a Lender hereunder if such Person fails to deliver a Certificate of ~~Borrower~~Exemption in advance of becoming a Lender. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of each Borrower to the participant and the participant shall be considered to be a "“Lender"”. Except as set forth in the preceding ~~sentence,~~ sentence neither any Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between each Borrower and that Lender, or each Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrower Representative, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrower Representative and Agent and after paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrower Representative and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 2 contracts

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

Assignment and Participations. ~~(a) Subject~~ This Agreement shall be binding upon and inure to the ~~terms~~ benefit of ~~this Section 9.1~~the parties and their respective successors and assigns, ~~any Lender~~ provided that the Borrower may ~~make an assignment to a Qualified Assignee of,~~ not assign or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower. (b) Any participation by a Lender of transfer all or any part of its ~~Commitments~~ rights or obligations hereunder or under any other Loan Document without the prior written consent of the Agent and all the Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time (a) sell to any entity participation interests in its Competitive Bid Loans; or (b) sell to any Eligible Assignee participation interests in its Committed Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or the Borrower provided, however, (a) that the selling Lender shall have provided the Borrower with prior written notice of the sale of any participation interest in any Committed Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing, rate or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer all or any part of its interest under the Loan Documents (y) without the consent of the Agent, any other Lender, or the Borrower to any of the assigning Lender's Affiliates or to any other Lender or any Eligible Assignee; or (z) with the prior written consent of the Agent and if no Event of Default shall have occurred and be continuing, the Borrower (such consents not to be unreasonably withheld or delayed), but without the consent of the other Lenders, to any other Person provided, however, that in either case no such assignment (as distinguished from the sale of a participation) (i) shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting in an amount less than Ten Million Dollars (i$10,000,000) ~~any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates,~~ nor (ii) ~~any extension~~ shall be made if after giving effect to such assignment the aggregate amount of the ~~scheduled amortization~~ Loans and unused Commitment of the ~~principal amount~~ assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower and otherwise under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Unless an Event of Default shall have occurred and be continuing, each Lender agrees that without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) it will not disclose to any prospective participant or assignee any nonpublic financial information concerning the Borrower or any Subsidiary which was furnished to such Lender pursuant to this Agreement. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder ~~participates or~~ shall be bound by and have the ~~final maturity date thereof, and (iii) any release~~ benefits of ~~all or substantially all~~ this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of ~~the Collateral~~ a Lender's interest hereunder to another Lender (other than an assignment of a Competitive Bid Loan) made in ~~accordance~~ conformance with the terms of this ~~Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that~~ Section 10.05 shall result in a ~~participation shall give rise to a direct obligation of Borrower~~ corresponding adjustment to the ~~participant~~ selling and purchasing Lenders' Percentage Interests. As used herein, "Eligible Assignee" means (i) a commercial bank organized under the ~~participant shall be considered to be~~ laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "~~Lender~~OECD"~~. Except as set forth~~ ), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the ~~preceding sentence~~United States of America; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a subsidiary of a Lender, ~~neither Borrower nor any other Credit Party shall have any obligation~~ (B) a Subsidiary of a Person of which a Lender is a Subsidiary, or ~~duty to any participant. Neither Agent nor any~~ (C) a Person of which a Lender ~~(other than the Lender selling~~ is a ~~participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred~~Subsidiary.

Appears in 2 contracts

Sources: Extended Revolving Credit Agreement (Costco Wholesale Corp /New), Short Term Revolving Credit Agreement (Costco Wholesale Corp /New)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee or to any other Person acceptable to Agent of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent and Borrower, which shall not to be unreasonably withheld or delayed; provided, however, that assignments by Non-Funding Lenders shall be subject to Agent’s prior written consent in all instances in the sole discretion of Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 10,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~10,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500, and (v) so long as no Event of Default has occurred and is continuing, require the consent of the Borrower, which shall not be unreasonably withheld or delayed and shall be deemed granted if not objected to within ten (10) Business Days following notice thereof to Borrower (it being understood and agreed that, so long as no Event of Default has occurred and is continuing, the Borrower may withhold its consent to an assignment by a Lender if the Borrower demonstrates to the satisfaction of the Agent, in its sole discretion, that the assignee is a direct business competitor (or an Affiliate thereof) of the Borrower within ten (10) Business Days following notice of such assignment to Borrower). In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and ~~9.8~~9.8 subject to clause (f) of this Section 9.1, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "“Lender"”. Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrower, the option to provide to Borrower all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided, that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrower and Agent and without paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrower and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder. (h) Nothing contained in this Section 9 shall be construed to require the consent of any party for the Swing Line Lender to make a Swing Lien Advance.

Appears in 2 contracts

Sources: Credit Agreement (Insteel Industries Inc), Credit Agreement (Insteel Industries Inc)

Assignment and Participations. (a) ~~Subject to the terms of this Section 9.1, any~~ Any Lender may ~~make an assignment to a Qualified Assignee of, or sell participations in,~~ assign at any time or times, any of the Loan Documents, Loans, ~~Letter of Credit Obligations and~~ any Commitment or any portion thereof or interest therein, ~~including~~ including, without limitation, any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not, with Borrower's consent which shall not be unreasonably withheld or delayed; provided that so long as any Event of Default shall have occurred and be continuing Borrower's consent shall not be required. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Agent (which consent shall not be unreasonably withheld or ~~delayed with respect to a Qualified Assignee~~delayed) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an a "Lender Assignment Agreement") substantially in ~~the~~ form attached hereto as Exhibit 9.1(a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and the Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment by the assigning Lender to the Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the Commitments. In the event Agent or ~~sale contemplated by this Section 9.1(a)~~any Lender assigns or otherwise transfers all or any part of a Note, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the ~~consummation~~ request of ~~which does not require consent of Borrower~~Agent or such Lender, execute new Notes in exchange for the Notes being assigned. (b) Borrower consents to any Lender's sale of a participation, at any time or times, in all or part of its Commitment. Any sale of a participation by a Lender of all or any part of its ~~Commitments~~ Commitment shall be made with the ~~understanding~~ understandings that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, except as provided in the following sentence, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the final scheduled ~~amortization~~ maturity date of the principal amount of any Loan in which such holder ~~participates or the final maturity date thereof~~participates, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any ~~other~~ Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 2 contracts

Sources: Credit Agreement (Wilsons the Leather Experts Inc), Credit Agreement (Wilsons the Leather Experts Inc)

Assignment and Participations. (a) ~~Subject~~ The Credit Parties signatory hereto consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, Loans, ~~Letter of Credit Obligations~~ and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Agent (which ~~consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which~~ such consent shall not be unreasonably withheld or delayed~~; provided~~), provided that any assignment to ~~Black Diamond Capital Management~~ an existing Lender or ~~any~~ an Affiliate of ~~its Affiliates~~ an existing Lender shall not require the consent of ~~Borrower so long as no Event~~ the Agent, provided that the parties to any such assignment have given prior written notice of ~~Default pursuant~~ such assignment to ~~Sections 8.1(a)(i)~~Agent, ~~8.1(a)(ii), 8.1(h~~(ii) ~~or 8.1(i) has occurred and is then continuing), and~~ require the execution of an assignment agreement (an "Assignment Agreement") substantially in the ~~form~~ from attached hereto as Exhibit 9.1(a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (iiiii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (~~iii~~iv) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (ivv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent shall so notify Borrowers and Borrowers shall, upon the request of Agent, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, however, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 1 contract

Sources: Credit Agreement (Titan International Inc)

Assignment and Participations. Agent and Lenders shall have the right, subject to this Section 8.1, to assign, sell, negotiate, pledge or hypothecate all or any portion of their rights and obligations hereunder. No Lender shall assign, sell, negotiate, pledge, hypothecate or otherwise transfer all or any portion of its rights in and to the Loan to any other Person (an “Assignee”) (a) ~~Subject~~ without Agent’s prior consent, not to be unreasonably withheld in the ~~terms~~ case of ~~this Section 9.1, any Lender may make~~ a proposed transfer to an ~~assignment to a Qualified~~ Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: which is an Eligible Assignee (~~i) require the consent of Agent (which~~ provided that Agent’s consent shall not be ~~unreasonably withheld or delayed~~ required with respect to the assignment, sale, negotiation, pledge or hypothecation by any Lender of all or any portion of its interest in the Loan to (i) an Approved Assignee or (ii) another Lender or an Affiliate of any Lender, unless, in the case of clause (i) or clause (ii), the proposed transferee is an Affiliate of Loan Parties, in which case the prior unanimous consent of all Lenders shall be required); (b) other than in compliance with Section 8.5 hereof; (c) unless such transaction shall be an assignment of a ~~Qualified Assignee~~constant (and not varying), ratable percentage of such Lender’s interest in the Loan; (d) ~~and~~unless the aggregate principal amount of the Loan to be held by the Assignee after such transaction is Fifteen Million Dollars ($15,000,000) or more (or such lesser amount approved by Agent); (e) unless, so after giving effect to such transaction, such Lender’s aggregate unassigned interest in the Loan shall be in a principal amount of at least Fifteen Million Dollars ($15,000,000) (or such lesser amount approved by Agent) unless such transaction encompasses all of such Lender’s rights in and to the Loan, in which case such Lender shall have assigned all of its rights in and to the Loan, and (f) without the consent of Borrower (not to be unreasonably withheld, delayed or conditioned), which consent shall be required solely as long as no Event of Default ~~has occurred~~ shall exist and solely to the extent that the proposed transfer is ~~then continuing, Borrower (~~to an Assignee which ~~consent shall~~ is not ~~be unreasonably withheld or delayed~~an Eligible Assignee; provided, ~~that~~ however, any ~~assignment to Black Diamond Capital Management or~~ Lender shall have the right at any ~~of its Affiliates shall require~~ time without the consent of ~~Borrower so long as no Event~~ or notice to Agent, any other Lender or other Person to grant a security interest in all or any portion of ~~Default pursuant~~ such Lender’s interest in the Notes or the Loan to ~~Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h~~any Federal Reserve Bank or the central reserve bank or similar authority of any other country to secure any obligation of such Lender to such bank or similar authority (a “Central Bank Pledge”) or ~~8.1(i) has occurred and is then continuing~~a Pfandbrief Transfer (as defined below), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned . Effective on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such ~~partial assignment,~~ assignment and assumption by the assignee ~~Lender shall have Commitments in an amount at least equal to $5,000,000~~ and on compliance with Section 8.5 hereof, the assigning Lender shall have ~~retained Commitments in an amount at least equal~~ no further liability hereunder with respect to ~~$2,500,000;~~ the interest of such Lender that was the subject of such transfer and ~~(iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by~~ such Assignee shall be a Lender with respect to such interest. Except for a Central Bank Pledge or a Pfandbrief Transfer, a Lender making any such assignment shall notify Borrower and to the extent required under the Ground Leases, the Ground Lessors of same, specifying the Assignee thereof and the amount of the assignment. The assigning or selling Lender shall pay the reasonable and documented out-of-pocket costs incurred by Agent to facilitate any assignment, sale or other transfer under this Section ~~9.1~~8.1, ~~the assignee shall have~~including without limitation, ~~to the extent of such assignment, the same rights, benefits~~ Agent’s reasonable and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrowerdocumented out-of-pocket legal fees and expenses. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 1 contract

Sources: Loan Agreement (Sunstone Hotel Investors, Inc.)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may upon notice to Borrowers make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) ~~after giving effect~~ be in a minimum aggregate amount equal to ~~any such partial assignment~~US$1,000,000 or, if less, the ~~assignee Lender shall have Commitments in an~~ entire commitment or the principal amount ~~at least equal to $5,000,000 and~~ of the ~~assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000~~loan being assigned; ~~and~~ (iv) include a payment to Agent of an assignment fee of $US$3,500. Agent’s refusal to accept an assignment to a Person that would be a Non-Funding Lender or an Impacted Lender or a holder of Second Lien Debt or an Affiliate of such a holder, or the imposition of conditions or limitations (including limitations on voting) upon assignments to such Persons, shall not be deemed to be unreasonable. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice~~ all other Lenders hereunder; provided that, so long as no Event of Default has occurred and is continuing, in the case of an assignment by a US Revolving Lender, if such assignee is a non-resident of the United States for purposes of the Revenue Code in respect of any ~~assignment~~ payment that may be made by any US Borrower, such assignee shall not be entitled to any gross-up payment or ~~sale contemplated by this~~ indemnification pursuant to Section ~~9.1(a~~1.14 from such US Borrower on account of any withholding taxes eligible on such payment. So long as no Event of Default has occurred and is continuing, without the Borrowers’ consent (acting reasonably), no Lender may assign its Commitment to any person in the ~~consummation~~ business of ~~which does~~ owning or operating ships transporting bulk cargo on the Great Lakes or any subsidiary of such a person. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees that any assignment shall give rise to a direct obligation of such Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not ~~require consent~~ joint and shall be limited to such Lender’s Pro Rata Share of ~~Borrower~~the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify the applicable Borrower and such Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ the Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). ~~Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8,~~ No Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any or other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between any Borrower and such Lender, or Agent and such Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be reasonably requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by a Borrower shall only be certified by such Borrower as having been prepared by such Borrower in compliance with the representations contained in Section 3.4(b). (e) A Lender may furnish any information concerning the Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants) and to the other Secured Parties; provided, that such Lender shall obtain from such assignees or participants or such other Secured Parties confidentiality covenants substantially equivalent to those contained in Section 11.8.

Appears in 1 contract

Sources: Credit Agreement (Rand Logistics, Inc.)

Assignment and Participations. (a) ~~Subject~~ This Agreement shall be binding upon and inure to the ~~terms~~ benefit of Great Lakes, each Agent, each Lender, all future holders of the Obligations and their respective successors and assigns, except that Great Lakes may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Agent and each Lender. (b) Any Lender may at any time sell to one or more banks or financial institutions (a “Participant”) participating interests in all or any portion of its Loan, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this ~~Section 9.1~~Agreement and the other Loan Documents and the Participant receiving the participating interest in the Loan, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Great Lakes, Agents, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any ~~Lender may make an assignment~~ participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Loan hereunder in which such Participant is participating, (B) reduce the interest rate (other than a ~~Qualified Assignee~~ waiver of default interest) applicable to the Loan in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Loan hereunder in which such Participant is participating, (D) postpone the date of payment of, or ~~sell participations in, at any time or times~~reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled and mandatory principal repayments, and (v) all amounts payable by Great Lakes hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or any other Loan ~~Documents~~Document or any direct rights as to the other Lenders, ~~Loans~~Agents, ~~Letter~~ Great Lakes, the Collateral, or otherwise in respect of ~~Credit Obligations~~ the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. Each Lender that sells a participation shall, acting solely for this purpose as an agent for Great Lakes, shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided, that no Lender shall have any ~~Commitment~~ obligation to disclose all or any portion ~~thereof~~ of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest ~~therein~~in any commitments, ~~including~~ 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. (c) Any Lender~~'s rights~~, ~~title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require~~ with the consent of each Agent (~~which consent shall~~ not to be unreasonably ~~withheld~~ withheld, conditioned or ~~delayed with respect to a Qualified Assignee~~delayed) and, so long as no Default or Event of Default has occurred and ~~is then~~ continuing, ~~Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require~~ with the consent of ~~Borrower so long as no Event of Default pursuant~~ Great Lakes (not to ~~Sections 8.1(a)(i~~be unreasonably withheld, conditioned or delayed), ~~8.1(a)(ii)~~may sell, ~~8.1(h)~~ assign or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower. (b) Any participation by a Lender of transfer all or any part of its rights and obligations under or relating to Loans and/or Commitments ~~shall be made with~~ under this Agreement and the ~~understanding that all~~ other Loan Documents to one or more Permitted Assignees (each a “Purchasing Lender”), in minimum amounts ~~payable~~ of not less than $1,000,000, pursuant to a Assignment Agreement, executed by ~~Borrower hereunder shall be determined as if that Lender had not sold such participation~~a Purchasing Lender, the assigning Lender, and each Agent and delivered to the Administrative Agent for recording; provided, however, that such minimum amount shall not apply, and the ~~holder~~ consent of ~~any such participation~~ the Agents and Great Lakes shall not be ~~entitled~~ required (but the Purchasing Lender shall nevertheless provide each Agent with a fully executed copy of the Assignment Agreement), if the Purchasing Lender is a Permitted Assignee pursuant to ~~require~~ clauses (a), (c), or (d) of the definition of Permitted Assignee. Upon such ~~Lender~~ execution, delivery, acceptance and recording, from and after the assignment effective date determined pursuant to ~~take or omit to take any action hereunder except actions directly affecting~~ such Assignment Agreement, (i) ~~any reduction~~ Purchasing Lender thereunder shall be a party hereto and, to the extent provided in such Assignment Agreement, have the ~~principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates,~~ rights and obligations of a Lender hereunder and (ii) ~~any extension of~~ the ~~scheduled amortization of~~ assigning Lender thereunder shall, to the ~~principal amount of any Loan~~ extent provided in ~~which~~ such ~~holder participates or the final maturity date thereof~~Assignment Agreement, ~~and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of~~ be released from its obligations under this Agreement, the ~~Collateral Documents~~ Assignment Agreement creating a novation for that purpose. Such Assignment Agreement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Purchasing Lender and the resulting adjustment of the Revolving Loan Commitments arising from the purchase by such Purchasing Lender of all or a portion of the rights and obligations of such assigning Revolving Lender under this Agreement and the other Loan Documents. Great Lakes hereby consents to the addition of such Purchasing Lender and the resulting adjustment of the Revolving Loan Commitments arising from the purchase by such Purchasing Lender of all or a portion of the rights and obligations of such assigning Lender under this Agreement and the other Loan Documents. Great Lakes shall execute and deliver such further documents and do such further acts and things in order to effectuate the foregoing. (d) [Reserved]. (e) Great Lakes authorizes, subject to Section 9.13, each Lender to disclose to any Purchasing Lender and Participant and any prospective Purchasing Lender and prospective Participant any and all financial information in such Lender’s possession concerning Great Lakes which has been delivered to such Lender by or on behalf of Great Lakes pursuant to this Agreement or in connection with such Lender’s credit evaluation of Great Lakes. (f) Notwithstanding anything in this Agreement or the other Loan Documents~~). Solely for purposes~~ , (x) neither Crystal, GB Merchant, nor any of ~~Sections 1.13~~their respective Affiliates shall be required to comply with Section 8.1 in connection with any transaction involving any other Affiliate of Crystal or GB Merchant or any of its or their lenders or funding or financing sources, ~~1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation~~ none of ~~Borrower to~~ the ~~participant and the participant~~ foregoing shall be considered a Purchasing Lender, and neither Crystal, GB Merchant nor any of their respective Affiliates shall have an obligation to disclose any such transaction to any Person, and (y) there shall be no limitation or restriction on (I) the ability of Crystal, GB Merchant or any of their respective Affiliates to assign or otherwise transfer its rights and/or obligations under this Agreement or any other Loan Document, any commitment, or any Obligation to any other Affiliate of Crystal or GB Merchant or any lender or financing or funding source of Crystal, GB Merchant or any of their respective Affiliates or (II) any such lender’s or funding or financing source’s ability to assign or otherwise transfer its rights and/or obligations under this Agreement or any other Loan Document, any commitment, or any Obligation; provided, however, that Crystal or GB Merchant, as applicable, shall continue to be liable as a "“Lender"” under this Agreement and the other Loan Documents unless such other Person complies with the provisions of this Agreement to become a “Lender.” (g) Great Lakes shall not, and shall not permit any Subsidiary or Affiliate to purchase, redeem, prepay, tender for or otherwise acquire, directly or indirectly, any of the outstanding Loans except upon the full repurchase or prepayment of the Loans in accordance with the other terms of this Agreement. ~~Except as~~ Great Lakes will promptly cancel all Loans acquired by it or any of its Subsidiaries or Affiliates pursuant to any purchase, redemption, prepayment or tender for the Loans pursuant to any provision of this Agreement or otherwise and no Loans may be issued in substitution or exchange for any such Loans. For the avoidance of doubt, this Section is not intended and shall not prevent Great Lakes from making (a) regularly scheduled payments of principal and interest with respect to the Loans, or (b) any prepayments of the Loans not otherwise prohibited by this Agreement. (h) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, (i) a Lender may pledge, or grant a security interest in, all or any portion of its rights and other obligations under or relating to Loans under this Agreement and the other Loan Documents to a bank or other funding source or any trustee or agent therefor in support of obligations owing by such Lender to such Persons and (ii) any Lender which is a fund may pledge, or grant a security interest in, all or any portion of its rights and other obligations under or relating to Loans under this Agreement and the other Loan Documents to its trustee in support of its obligation to its trustee. No pledge or grant of a security interest pursuant to this clause (h) shall release the transferor Lender from any of its obligations hereunder. (i) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, GB Merchant and Crystal shall have a right of first offer with respect to a proposed sale or assignment by another Lender of its portion of the Loans regardless of whether before or after the occurrence of an Event of Default (other than a sale or assignment to a Permitted Assignee pursuant to clauses (a), (c) or (d) of such definition or an assignment pursuant to Section 8.1(f)(I) or 8.1(f)(II)). Within five (5) Business Days of receipt by the non-assigning Lenders of notice of a proposed sale or assignment of the assigning Lender’s portion of the Loans, the non-assigning Lenders shall have the right to purchase all, but not less than all, of the Loans on the same terms and conditions set forth in Section 8.1; provided that if more than one non-assigning Lender exercises its right to purchase such Loans, then such Lenders shall purchase the ~~preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling~~ Loans on a ~~participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred~~pro rata basis.

Appears in 1 contract

Sources: Credit Agreement (Great Lakes Aviation LTD)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; provided, that such fee shall be waived in the case of an assignment to an Affiliate of the assigning Lender; and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed; provided that no such consent shall be required for an assignment to a Qualified Assignee of the type described in clause (a) of the definition of “Qualified Assignee”; and provided further, that an assignment will not be effective unless it is recorded by Agent in the Loan Account. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender"”. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be reasonably requested and, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy in all material respects of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.4(b). (e) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrowers, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and Agent and without paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 1 contract

Sources: Credit Agreement (Finlay Fine Jewelry Corp)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee or a Related Fund of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, (x) in the case of Revolving Loan, the assignee Lender shall have Revolving Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Revolving Commitments in an amount at least equal to $~~2,500,000~~5,000,000, and (y) in the case of Term Loan, the assignee Lender and its Affiliates and Related Funds shall have Term Loan Commitments of at least $1,000,000 in the aggregate and the assigning Lender and its Affiliates and Related Funds shall have retained Term Loan Commitments of at least $1,000,000 in the aggregate; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; and (vi) so long as no Event of Default shall have occurred or be continuing, require the consent of Borrower (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee and shall not be required (x) for an assignment by a Lender to another Lender or to an Affiliate of a Lender or to a Related Fund or (y) for an assignment of the Term Loan and the related Loan Documents). In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge all or any portion of the ~~consummation~~ Obligations held by it and all or any portion of ~~which does not require~~ such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank or a Qualified Assignee as collateral security to secure obligations of such Lender, Affiliates of such Lender or funds or accounts managed by such Lender or an Affiliate of such Lender to such Federal Reserve Bank or such Qualified Assignee (without requesting the consent of the Borrower or the Agent but in each case by providing to the Agent an advance written notice thereof which shall identify the Person obligated under the obligations secured by such pledge and the Person in whose favor such pledge is made); provided, that no such pledge shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document; provided, further, any such pledgee or grantee (other than any Federal Reserve Bank) shall be entitled to further transfer all of any portion of the rights pledged or granted to it, whether by means of foreclosure or otherwise, as long as (x) such pledgee or grantee transfers such rights to a Qualified Assignee, (y) such right to transfer is at all times subject to the terms of this Agreement and (z) each such pledgee or grantee shall have provided in each case a written notice of such transfer to the Agent which identifies the transferee of such rights. Agent shall, on behalf of the Borrower, maintain in its offices located at 1▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or such other offices as Agent may elect from time to time) a copy of each Assignment Agreement delivered to it and a register for recording the name, address, commitment and Loans owing to each Lender from time to time party hereto (the “Register”). Upon acceptance by the Agent of a properly completed and executed Assignment Agreement in respect of any interest under this Agreement which has at any time been recorded in the Register, the Agent shall record the name, address and the commitment of the Assignee in the Register, and no such assignment shall be effective unless and until it has been recorded in the Register. The entries in the Register shall be presumptive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. Agent shall incur no liability of any kind to any Lender or any other Person with respect to its maintenance of the Register or the recordation of information therein. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) No Lender shall assign or sell participations in any portion of its Loan or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or taxes in accordance with Section 1.15(a) or Section 1.15(b). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrower, the option to provide to Borrower all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrower and Agent and assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrower and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guaranty or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 1 contract

Sources: Credit Agreement (RBC Bearings INC)

Appears in 1 contract

Sources: Credit Agreement (Darling International Inc)

Appears in 1 contract

Sources: Credit Agreement (Sothebys Holdings Inc)

Assignment and Participations. (a) ~~Subject~~ Borrowers hereby consent to ~~the terms~~ Administrative Agent's and any Lender's sale of ~~this Section 9.1~~participations, and to Administrative Agent's and any ~~Lender may make an assignment to a Qualified Assignee of, or sell participations in~~Lender's assignment, at any time or times, of any of the Loan Documents, ~~Loans, Letter of Credit Obligations and~~ any Commitment or of any portion thereof or interest therein, ~~including~~ including, without limitation, Administrative Agent's and any Lender's rights, title, interests, remedies, powers or duties thereunder~~. Any~~ , whether evidenced by a writing or not; provided that any assignment by a Lender ~~shall:~~ of all or any part of its Commitment shall (i) require the consent of Administrative Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of ~~an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise~~ a Lender Addition Agreement in form and substance ~~reasonably~~ satisfactory ~~to, and acknowledged by,~~ to Administrative Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and the Administrative Agent that it is purchasing the ~~applicable~~ Revolving Credit Loans and/or Term Loan C to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; provided that the foregoing shall not prohibit the sale of such Loans to commercial banks, finance companies and investment funds; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment by the assigning Lender to the Administrative Agent of an assignment fee of $3,500~~. In the case of an assignment by a Lender under this Section 9.1~~; provided further, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of that any ~~assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower. (b) Any~~ participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action ~~hereunder~~ hereunder, except actions directly affecting (i) any reduction in the principal ~~amount of~~amount, or interest rate or ~~Fees~~ fees payable ~~with respect to, any Loan~~ hereunder in which such holder participates, (ii) any extension of the final scheduled ~~amortization~~ maturity date of the principal amount of ~~any~~ the Revolving Credit Loan and/or Term Loan C in which such holder ~~participates or the final maturity date thereof~~participates, ~~and~~ (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this ~~Agreement, the Collateral Documents~~ Agreement or the other Loan Documents)) and (iv) any increase in the percentage advance rates set forth in the definition of "Borrowing Base" or "UK Borrowing Base". ~~Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8,~~ Each Borrower hereby acknowledges and agrees that a any participation ~~shall~~ will give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall for purposes of Sections 1.15, 1.16 and 9.8 be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 1 contract

Sources: Credit Agreement (National Oilwell Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee or a Related Fund of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, (x) in the case of Revolving Loan, the assignee Lender shall have Revolving Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Revolving Commitments in an amount at least equal to $~~2,500,000~~5,000,000, and (y) in the case of Term Loan, the assignee Lender and its Affiliates and Related Funds shall have Term Loan Commitments of at least $1,000,000 in the aggregate and the assigning Lender and its Affiliates and Related Funds shall have retained Term Loan Commitments of at least $1,000,000 in the aggregate; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; and (vi) so long as no Event of Default shall have occurred or be continuing, require the consent of Borrower (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee and shall not be required (x) for an assignment by a Lender to another Lender or to an Affiliate of a Lender or to a Related Fund or (y) for an assignment of the Term Loan and the related Loan Documents). In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge all or any portion of the ~~consummation~~ Obligations held by it and all or any portion of ~~which does not require~~ such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank or a Qualified Assignee as collateral security to secure obligations of such Lender, Affiliates of such Lender or funds or accounts managed by such Lender or an Affiliate of such Lender to such Federal Reserve Bank or such Qualified Assignee (without requesting the consent of the Borrower or the Agent but in each case by providing to the Agent an advance written notice thereof which shall identify the Person obligated under the obligations secured by such pledge and the Person in whose favor such pledge is made); provided, that no such pledge shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document; provided, further, any such pledgee or grantee (other than any Federal Reserve Bank) shall be entitled to further transfer all of any portion of the rights pledged or granted to it, whether by means of foreclosure or otherwise, as long as (x) such pledgee or grantee transfers such rights to a Qualified Assignee, (y) such right to transfer is at all times subject to the terms of this Agreement and (z) each such pledgee or grantee shall have provided in each case a written notice of such transfer to the Agent which identifies the transferee of such rights. Agent shall maintain in its offices located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or such other offices as Agent may elect from time to time) a “register” for recording the name, address, commitment and Loans owing to each Lender. The entries in such register shall be presumptive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrower, Agent and each Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Lender for all purposes of this Agreement. The register described herein shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) No Lender shall assign or sell participations in any portion of its Loan or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or taxes in accordance with Section 1.15(a) or Section 1.15(b). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrower, the option to provide to Borrower all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting

Appears in 1 contract

Sources: Credit Agreement (RBC Bearings INC)

Appears in 1 contract

Sources: Credit Agreement (Navarre Corp /Mn/)

Assignment and Participations. (a) ~~Subject~~ The Credit Parties signatory hereto consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Administrative Agent and Bon-Ton (which ~~consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent~~ shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Administrative Agent, provided, however, that the consent of Bon-Ton shall not be required for any assignment by a Lender if at the time of such assignment a Default or Event of Default shall have occurred and be continuing; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Administrative Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Administrative Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Administrative Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of a Note, Administrative Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Administrative Agent or such Lender, execute new Notes in exchange for the Notes being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the ~~consummation of which does not require consent of Borrower~~other Loan Documents to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be ~~made~~ in an amount at least equal to $5,000,000, and with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. ~~Neither~~ No Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 1 contract

Sources: Credit Agreement (Bon Ton Stores Inc)

Assignment and Participations. (a) Subject to the terms of this ~~Section~~ SECTION 9.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "~~Assignment Agreement")~~ ASSIGNMENT AGREEMENT" substantially in the form attached hereto as ~~Exhibit 9.1(a~~EXHIBIT 9.1(A) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 2,500,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this ~~Section~~ SECTION 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this ~~Section 9.1(a~~SECTION 9.1(A), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; PROVIDED, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of ~~Sections~~ SECTIONS 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender"; PROVIDED, that the participant shall not be entitled to receive any greater amount pursuant to Sections 1.13, 1.15, or 1.16 than the participating Lender would have been entitled to receive in respect of the amount of the participation sold by such participating Lender to such participant had no such participation occurred. Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this SECTION 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender holding at least 66 2/3% of the Commitments of all Lenders or if the Commitments have been terminated at least 66 2/3% of the aggregate outstanding amount of Loans, permitted to sell assignments or participations under this SECTION 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in SECTION 3.4(C). (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in SECTION 11.8.

Appears in 1 contract

Sources: Credit Agreement (Tefron LTD)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) ~~and,~~ and so long as no Default or Event of Default ~~has occurred and is~~ then ~~continuing~~exists, ~~Borrower~~ the consent of Borrowers (which consent shall not be unreasonably ~~withheld~~ withheld, delayed or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(hconditioned) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist, at any time and from time to time, any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, in the case of a Lender who was a Lender on the Closing Date, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.4(c). (e) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender"), may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing by the Granting Lender to Agent and Borrowers, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof, (iii) an SPC shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (iA) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such ~~holder~~ SPC participates, (iiB) any extension of the scheduled amortization of the principal amount of any Loan in which such ~~holder~~ SPC participates or the final maturity date thereof, and (~~iii~~C) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). ~~Solely for purposes~~ The making of ~~Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that~~ a ~~participation~~ Loan by an SPC hereunder shall ~~give rise to a direct obligation~~ utilize the Commitment of ~~Borrower~~ the Granting Lender to the ~~participant~~ same extent, and ~~the participant~~ as if such Loan were made by such Granting Lender. No SPC shall be ~~considered~~ liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and Agent and assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be ~~a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than~~ the Lender ~~selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred~~of record hereunder.

Appears in 1 contract

Sources: Credit Agreement (Carmike Cinemas Inc)

Assignment and Participations. (a) ~~Subject~~ Borrowers consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, ~~Loans~~the Revolving Loan of such Lender, ~~Letter of Credit~~ L/C Obligations ~~and any~~ or its Revolving Loan Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender shall: (i) require the consent of Administrative Agent and Borrower Representative (which consent ~~shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event~~ of ~~Default has occurred and is then continuing,~~ Borrower ~~(which consent~~ Representative shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "Assignment Agreement") -------------------- substantially in the form attached hereto as ~~Exhibit~~ EXHIBIT 9.1(a) and otherwise -------------- in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Administrative Agent; provided, that no such consent of Borrower Representative shall be -------- required if, at the time of such assignment, a Default or Event of Default has occurred and is continuing; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Administrative Agent that it is purchasing the applicable ~~Loans~~ Revolving Loan to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in a minimum amount of $4,000,000 or an integral multiple of $1,000,000 in excess thereof and, after giving effect to any such partial assignment, the ~~assignee~~ assigning Lender shall have ~~Commitments~~ retained a Revolving Loan Commitment (or, after the Commitment Termination Date, a Revolving Credit Loan) in an amount at least equal to $~~5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000~~4,000,000; and (iv) include a payment (allocated between the assignor and the assignee as they may agree) to Administrative Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this ~~Section~~ SECTION 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations ~~as all (a) have been complied with~~of all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Revolving Loan Commitment or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be a "Lender." In all instances, each Lender's liability to make Revolving Credit Advances hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the Revolving Loan Commitments. In the event Administrative Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Administrative Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Administrative Agent or such Lender, execute new Revolving Notes, if any, in exchange for the Revolving Notes being assigned. Notwithstanding the foregoing provisions of this ~~Section~~ SECTION 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank in accordance with Regulation A or U.S. Treasury Regulation 31 CFR (S) 203.14, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, -------- that no such pledge to a Federal Reserve Bank and no such assignment to another investment fund shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its ~~Commitments~~ Revolving Loan Commitment shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Revolving Loan in which such holder participates, (ii) any extension of the ~~scheduled amortization of the principal amount~~ final maturity date of any Revolving Loan in which such holder ~~participates or the final maturity date thereof~~participates, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of ~~Sections~~ SECTIONS 1.11, 1.13, ~~1.15, 1.16~~ 1.14 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "Lender". ." Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other Credit Party~~ shall have any obligation or duty to any participant. Neither any Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this SECTION 9.1, no Lender shall, as between Borrowers and that Lender, or Agents and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Revolving Loan, the Revolving Notes or other Obligations owed to such Lender. (d) Each Borrower shall assist any Lender permitted to sell assignments or participations under this SECTION 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Borrower shall certify the correctness, completeness and accuracy of all descriptions of Borrowers and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that the Budget shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in SECTION 3.4(b). (e) A Lender may furnish any information concerning Borrowers in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants). Each Lender shall obtain from any prospective or actual assignees or participants confidentiality covenants substantially equivalent to those contained in SECTION 11.8.

Appears in 1 contract

Sources: Debtor in Possession Credit Agreement (Boston Chicken Inc)

Assignment and Participations. (a) ~~Subject to the terms of this Section 9.1, any~~ Any Lender may ~~make an assignment to a Qualified Assignee of, or~~ sell participations in, or assign at any time or times, the ~~Loan Documents~~loan documents, Loans, ~~Letter of Credit Obligations~~ and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Administrative Agent and Borrower (which ~~consent~~ shall not be unreasonably withheld or delayed ~~with respect to a Qualified Assignee) and, so long as no Event of Default has occurred~~ and ~~is then continuing, Borrower (~~which consent shall not be ~~unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no~~ required after an Event of ~~Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h~~Default) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "Assignment Agreement") ~~substantially in the form attached hereto as Exhibit 9.1(a) and otherwise~~ in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Administrative Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Administrative Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Administrative Agent of an assignment fee of $~~3,500~~3,500.00. In the case of an assignment by a Lender under this ~~Section 9.1~~Section, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Administrative Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of a Note, Administrative Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Administrative Agent or such Lender, execute new Notes in exchange for the Notes being assigned. Notwithstanding the foregoing provisions of this ~~Section 9.1(a)~~Section, any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the ~~consummation of which does not require consent of Borrower~~other Loan Documents to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or ~~Fees~~ fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the ~~Collateral~~ collateral (other than in accordance with the terms of this Agreement, the ~~Collateral Documents~~ collateral documents or the other Loan Documents). ~~Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8,~~ Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". ~~Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant.~~ Neither Administrative Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section, no Lender shall, as between Borrower and that Lender, or Administrative Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other obligations owed to such Lender. (d) Borrower shall assist any Lender permitted to sell assignments or participations under this Section 10.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Administrative Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Borrower shall certify the correctness, completeness and accuracy of all descriptions of the Borrower and its affairs contained in any selling materials provided by it and all other information provided by it and included in such materials. (e) A Lender may furnish any information concerning Borrower in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants). (f) So long as no Event of Default shall have occurred and be continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements, increased costs, or an inability to fund LIBOR Loans.

Appears in 1 contract

Sources: Credit Agreement (Able Laboratories Inc)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~8.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties ~~thereunder~~thereunder except GE Capital will not assign its Commitments, Loans or Loan Documents with respect to the In-Season Overadvance. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement ~~(an "Assignment Agreement")~~ substantially in the form attached hereto as Exhibit ~~9.1(a)~~ 8.1 and otherwise in form and substance reasonably satisfactory to, and acknowledged by, ~~Agent~~Agent (an “Assignment Agreement”); (ii) be conditioned on such assignee Lender representing to the assigning Lender and ~~Agent~~ Agent, that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 3,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~3,000,000; ~~and~~ (iv) ~~include~~ require a payment to Agent of an assignment fee of $3,500; (v) be on a pro rata basis among all U.S. Revolving Loans, Canadian Revolving Credit Advances and Participating Interests of the Assigning Lender and (vi) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed and shall be deemed granted if not objected to within five (5) Business Days following notice thereof to Borrower Representative. Notwithstanding the above, Agent or Canadian Agent, as applicable, may in its sole and absolute discretion permit any assignment by a Lender to a Person or Persons that are not Qualified Assignees; provided that, so long as no Event of Default has occurred and is continuing, such assignment shall also require the Borrower Representative’s consent, which consent shall not be unreasonably withheld or delayed. If, after giving effect to any assignment by GE Capital in its capacity as a Lender hereunder, its Revolving Loan Commitment is less than $25,000,000, it shall be obligated to assign its entire Swing Line Commitment to another Lender, which assignment shall, so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which consent shall not be unreasonably withheld or delayed and shall be deemed granted if not objected to within five (5) Business Days following notice thereof to Borrower Representative. In the case of an assignment by a Lender under this Section ~~9.1~~8.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrowers hereby ~~agrees to provide Borrower with commercially reasonable prior written notice of~~ acknowledge and agree that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender.” In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ Canadian Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or Canadian Agent, as applicable, or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or Canadian Agent, as applicable, or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section ~~9.1(a~~8.1(a), (x) any Lender may at any time pledge the ~~consummation~~ Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, (y) any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor or pledge such Obligations and rights to trustee for the benefit of ~~which does not require consent~~ its investors and (z) any Lender may assign the Obligations to an Affiliate of ~~Borrower~~such Lender or to a Person that is a Lender prior to the date of such assignment. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of ~~Sections 1.13~~Section 8.3, ~~1.15, 1.16~~ Borrowers acknowledge and ~~9.8, Borrower acknowledges and agrees~~ agree that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender". .” Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor~~ or any other Credit Party shall have any obligation or duty to any participant. Neither ~~Agent~~ Agents nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. The provisions of this Section 8.1(b) do not apply to the Participating Interests or the Lenders or their Affiliates in their capacity as holders of the Participating Interests. Any participation sold by a Lender or a participant shall be on a pro rata basis among all Revolving Loans and Participating Interests. Without limiting the foregoing, no participant shall have any rights under Sections 1.8, 1.9 or 9.1. (c) Except as expressly provided in this Section 8.1, no Lender shall, as between Borrowers and that Lender, or Agent or Canadian Agent, as applicable, and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) In connection with the primary syndication of the Loans to occur within 90 days after the Closing Date, each Credit Party shall assist each Lender permitted to sell assignments or participations under this Section 8.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be reasonably requested and the prompt preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants, all on a reasonable timetable established by Agent or Canadian Agent, as applicable, in its sole discretion. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 5.5. Agent or Canadian Agent, as applicable, shall maintain, on behalf of Borrowers, in its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (or, in the case of Canadian Agent, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ) a “register” for recording the name, address, commitment and Loans owing to each Lender. The entries in such register shall be presumptive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrowers, Agents and each Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Lender for all purposes of this Agreement. The register described herein shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 9.13. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.10(a), increased costs or an inability to fund LIBOR Loans under Section 1.10(b), or withholding or other taxes in accordance with Section 1.11.

Appears in 1 contract

Sources: Credit Agreement (Uap Holding Corp)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder; provided, however, that each such assignment must be of a fixed percentage of all of such Lender’s rights and obligations hereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; and (v) so long as no Event of Default shall have occurred or be continuing, require the consent of Borrower (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee). In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of such Credit Party and its affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided, that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) No Lender shall assign or sell participations in any portion of its Loan or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or taxes in accordance with Section 1.15(a) or Section 1.15(b). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrower, the option to provide to Borrower all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided, that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrower and Agent and assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrower and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guaranty or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 1 contract

Sources: Credit Agreement (Roller Bearing Co of America Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, ~~Loans, Letter of Credit Obligations~~ Loans and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) (A) except for an assignment to an Affiliate (as defined in clause (a) and/or (b) of the definition of "Affiliate" in Annex A) of the assigning Lender, require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) ~~and, so long as no Event of Default has occurred~~ and ~~is then continuing, Borrower~~ (~~which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall~~ B) require ~~the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and~~ the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on ~~such~~ the assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 2,500,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) except for an assignment to an Affiliate (as defined in clause (a) and/or (b) of the definition of "Affiliate" in Annex A) of the assigning Lender, include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to document any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be reasonably requested. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) Any entity that purchases a participation in the Loans pursuant to Section 9.2(b) shall not be entitled to receive any greater payment under Section 1.16(a) with respect to capital adequacy or similar requirements, Section 1.16(b) with respect to increased costs, Section 1.16(c) with respect to the inability to make LIBOR Loans or Section 1.15(a) with respect to withholding taxes, than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, unless the sale of the participation to such participant is made with the Borrower’s prior written consent or unless such sale is made while an Event of Default has occurred and is continuing. (g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender"), may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing by the Granting Lender to Agent and Borrower, the option to provide to Borrower all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrower and Agent and assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrower and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder. (h) Nothing contained in this Section 9 shall require the consent of any party for a Swap Related L/C Provider to assign any of its rights in respect of any Swap Related Reimbursement Obligation.

Appears in 1 contract

Sources: Credit Agreement (Otelco Inc.)

Assignment and Participations. ~~(a) Subject~~ This Agreement shall be binding upon, and inure to the ~~terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee~~ benefit of, ~~or sell participations in, at any time or times~~the Borrower, the ~~Loan Documents~~Agent, ~~Loans~~the Lenders and their respective successors and assigns, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require except that the ~~consent of Agent (which consent shall~~ Borrower may not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or assign any of its ~~Affiliates shall require~~ rights or obligations hereunder without the prior written consent of ~~Borrower so long~~ the Lenders. In giving any consent as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect aforesaid to any ~~such partial assignment~~assignment by the Borrower, the ~~assignee~~ Lenders shall be entitled to impose such conditions as they shall deem advisable. Any Lender shall ~~have Commitments in an amount at least equal~~ be entitled to ~~$5,000,000 and~~ assign the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower. (b) Any participation by a Lender of all whole or any part of its ~~Commitments shall be made~~ rights or obligations under this Agreement or grant participation(s) in the Credit Facility to any subsidiary or holding company of such Lender, to any subsidiary company of any thereof or, with the ~~understanding that all amounts payable by~~ consent of the Borrower ~~hereunder~~ and the Agent (in each case not to be unreasonably withheld) to any other bank or financial institution whatsoever and such Lender shall ~~be determined as if that Lender had not sold such participation, and that the holder~~ forthwith give notice of any such assignment or participation to the Agent and the Borrower, provided, however, that (a) except as provided by Section 16, in such event Den norske Bank ASA shall remain the agent, (b) any such assignment or participation shall ~~not~~ be ~~entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting~~ in a minimum amount of Ten Million Dollars (i$10,000,000), (c) any ~~reduction~~ such assignment to a Lender is to be made pursuant to an Assignment and Assumption Agreement substantially in the ~~principal amount of~~form of Exhibit 5 hereto, (d) Den norske Bank ASA's Commitment shall be not less than twenty-five percent (25%) of the Committed Amount and (e) except as provided in Sections 14.2 and for such reasonable legal fees and expenses incurred in connection with the documentation of such an assignment (but not participation), no such assignment or participation will result in any additional costs to, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreementadditional material requirements on, the ~~Collateral Documents or~~ Borrower. The Borrower will take all reasonable actions requested by the ~~other Loan Documents)~~Lenders to effect such assignment, including, without limitation, the execution of a written consent to such Assignment and Assumption Agreement. ~~Solely for purposes of Sections 1.13~~12 ILLEGALITY, ~~1.15~~INCREASED COST, ~~1.16 and 9.8~~NON-AVAILABILITY, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurredETC.

Appears in 1 contract

Sources: Revolving Credit Facility Agreement (Seacor Smit Inc)

Assignment and Participations. (a) ~~Subject to the terms of this Section 9.1, any~~ Each Lender may ~~make an assignment~~ sell, transfer, negotiate or assign all or a portion of its rights and obligations hereunder (including all or a portion of its Commitments and its rights and obligations with respect to ~~a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents,~~ Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: ) to (i) ~~require the consent~~ any existing Lender (other than a Non-Funding Lender or Impacted Lender), (ii) any Affiliate or Approved Fund of ~~Agent~~ any existing Lender or (iii) any other Person acceptable (which ~~consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent~~ acceptance shall not be unreasonably withheld or delayed~~; provided~~) to the Agent and, ~~that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so~~ as long as no Event of Default ~~pursuant~~ is continuing, the Borrower Representative; provided, however, that (w) no assignment of the Revolving Loan Commitment to ~~Sections 8.1(a)(i~~an Affiliate or Approved Fund of any Lender shall be permitted without the prior written consent of the Agent (such consent not to be unreasonably withheld or delayed), ~~8.1(a)(ii)~~(x) such assignments do not have to be ratable between the Commitments but must be ratable among the obligations owing to and owed by such Lender with respect to a Commitment, ~~8.1(h~~(y) for each Commitment, the aggregate outstanding principal amount (determined as of the effective date of the applicable assignment) of the Loans and Commitments subject to any such assignment shall be an integral multiple of $1,000,000, unless such assignment is made to an existing Lender or an Affiliate or Approved Fund of any existing Lender, is of the assignor’s (together with its Affiliates and Approved Funds) entire interest in such Commitment or is made with the prior consent of the Borrower Representative and the Agent, and (z) no sale, assignment, or transfer shall be made to any holders of Capital Stock of any Credit Party or to any Affiliate of any Credit Party or to any holders of Subordinated Debt or any Affiliates of such holders of Subordinated Debt. Notwithstanding anything to the contrary contained herein, GE Capital shall have the absolute right, without obligation to obtain any consent of any Borrower or any other party, to sell or assign to third parties such portion of its Commitments and Loans hereunder as GE Capital deems necessary to enable GE Capital and its Affiliates to ensure that it and they have no attributable interest in Borrowers for purposes of the Communications Laws or to otherwise comply with the Communications Laws. (b) The parties to each assignment made in reliance on clause (a) above (other than those described in clause (d) or ~~8.1(i~~(e) ~~has occurred~~ below) shall execute and ~~is then continuing), and~~ deliver to the ~~execution of~~ Agent (which shall keep a copy thereof) an ~~assignment agreement (an "~~Assignment ~~Agreement")~~ Agreement substantially in the form attached hereto as Exhibit ~~9.1(a~~9.1(b) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; , together with any existing Note subject to such assignment (~~ii) be conditioned on such assignee Lender representing~~ or any affidavit of loss therefor acceptable to the ~~assigning Lender and Agent that it is purchasing the applicable Loans~~ Agent), any tax forms required to be ~~assigned~~ delivered pursuant to ~~it for its own account, for investment purposes~~ Section 1.15(c) and payment by the assignee (and not ~~with a view to the distribution thereof; (iii~~Borrowers) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) include a payment to Agent of an assignment fee in the amount of $3,500. In Upon receipt of all the foregoing, and conditioned upon such receipt and upon the Agent consenting to such assignment, from and after the effective date specified in such Assignment, the Agent shall record or cause to be recorded in the Register the information contained in such assignment. Notwithstanding anything contained herein to the contrary, any expenses incurred by Agent or any Lender in connection with any assignment will not be borne by Borrowers. (c) Effective upon the entry of such record in the Register, (i) such assignee shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such assignment, shall have the rights and obligations of a Lender, (ii) any applicable Note shall be transferred to such assignee through such entry and (iii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such assignment, relinquish its rights (except for those surviving the termination of the Commitments and the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an assignment covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto except that each Lender agrees to remain bound by ~~a Lender under~~ Section 9. (d) In addition to the other rights provided in this Section 9.1, each Lender may grant a security interest in, or otherwise assign as collateral, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the ~~assignee shall have~~Loans), to (A) any federal reserve bank (pursuant to Regulation A of the ~~extent~~ Federal Reserve Board), without notice to the Agent or the Credit Parties or (B) any holder of, or trustee for the benefit of the holders of, such Lender’s Lender Securities by notice to the Agent; provided, however, that no such holder or trustee, whether because of such ~~assignment~~grant or assignment or any foreclosure thereon (unless such foreclosure is made through an assignment in accordance with clause (b) above), ~~the same rights, benefits~~ shall be entitled to any rights of such Lender hereunder and ~~obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice~~ no such Lender shall be relieved of any ~~assignment or sale contemplated by this Section 9.1(a), the consummation~~ of ~~which does not require consent of Borrower~~its obligations hereunder. (be) ~~Any participation by a~~ In addition to the other rights provided in this Section 9.1, each Lender of may, (x) with notice to the Agent, grant to an SPV the option to make all or any part of ~~its Commitments~~ any Loan that such Lender would otherwise be required to make hereunder (and the exercise of such option by such SPV and the making of Loans pursuant thereto shall ~~be made with~~ satisfy the ~~understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder~~ obligation of ~~any such participation shall not be entitled to require~~ such Lender to ~~take~~ make such Loans hereunder) and such SPV may assign to such Lender the right to receive payment with respect to any Obligation and (y) without notice to or ~~omit~~ consent from the Agent or the Borrowers, sell participations to ~~take~~ one or more Persons in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Term Loan and Revolving Loan); provided, however, that, whether as a result of any ~~action hereunder except actions directly affecting~~ term of any Loan Document or of such grant or participation, (i) ~~any reduction~~ no such SPV or participant shall have a commitment, or be deemed to have made an offer to commit, to make Loans hereunder, and, except as provided in the ~~principal amount of~~applicable option agreement, ~~or interest rate or Fees payable with respect to,~~ none shall be liable for any ~~Loan in which~~ obligation of such ~~holder participates~~Lender hereunder, (ii) ~~any extension~~ such Lender’s rights and obligations, and the rights and obligations of the ~~scheduled amortization~~ Credit Parties, the Agent and the Lenders towards such Lender, under any Loan Document shall remain unchanged and each other party hereto shall continue to deal solely with such Lender, which shall remain the holder of the ~~principal amount of any Loan~~ Obligations in ~~which~~ the Register, except that (A) each such ~~holder participates or~~ participant and SPV shall be entitled to the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes benefit of Sections 1.13, 1.15, ~~1.16~~ and ~~9.8~~1.16, ~~Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower~~ but only to the extent such participant or SPV delivers any tax forms such Lender is required to collect pursuant to Section 1.15(c) and then only to the ~~participant shall~~ extent of any amount to which such Lender would be ~~considered~~ entitled in the absence of any such grant or participation and (B) each such SPV may receive other payments that would otherwise be made to ~~be a "Lender". Except as~~ such Lender with respect to Loans funded by such SPV to the extent provided in the applicable option agreement and set forth in a notice provided to the Agent by such SPV and such Lender, provided, however, that in no case (including pursuant to clause (A) or (B) above) shall an SPV or participant have the right to enforce any of the terms of any Loan Document, (iii) the consent of such SPV or participant shall not be required (either directly, as a restraint on such Lender’s ability to consent hereunder or otherwise) for any amendments, waivers or consents with respect to any Loan Document or to exercise or refrain from exercising any powers or rights such Lender may have under or in respect of the Loan Documents (including the right to enforce or direct enforcement of the Obligations), except for those described in clauses (ii), (iii) and (iv) of Section 11.2(c) with respect to amounts, or dates fixed for payment of amounts, to which such participant or SPV would otherwise be entitled and, in the case of participants, except for those described in Section 11.2(c)(v), and (iv) no participation shall be sold to or made with any holders of Capital Stock of any Credit Party or to any Affiliate of any Credit Party or to any holders of Subordinated Debt or any Affiliates of such holders of Subordinated Debt. No party hereto shall institute against any SPV grantee of an option pursuant to this clause (e) any bankruptcy, reorganization, insolvency, liquidation or similar proceeding, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper of such SPV; provided, however, that each Lender having designated an SPV as such agrees to indemnify each Indemnified Person against any Liability that may be incurred by, or asserted against, such Indemnified Person as a result of failing to institute such proceeding (including a failure to get reimbursed by such SPV for any such Liability). The agreement in the preceding ~~sentence, neither Borrower nor any other Credit Party~~ sentence shall ~~have any obligation or duty to any participant. Neither Agent nor any Lender (other than~~ survive the ~~Lender selling a participation) shall have any duty to any participant~~ termination of the Commitments and ~~may continue to deal solely with~~ the ~~Lender selling a participation as if no such sale had occurred~~payment in full of the Obligations.

Appears in 1 contract

Sources: Credit Agreement (Northland Cable Properties Seven Limited Partnership)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Revolving Loan Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Administrative Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Administrative Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Administrative Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 1,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Administrative Agent of an assignment fee of $~~3,500~~3,500 and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower, which shall not be unreasonably withheld or delayed; provided that in no event shall the consent of the Borrower or the Administrative Agent be required for an assignment to a Lender or to an affiliate of a Lender. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Revolving Loan Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Revolving Loan Commitment. In the event Administrative Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Administrative Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Administrative Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Revolving Loan Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Administrative Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Administrative Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any projections delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 3.17. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Revolving Loan Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender"), may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing by the Granting Lender to Administrative Agent and Borrower, the option to provide to Borrower all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Revolving Loan Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrower and Administrative Agent and without paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrower and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 1 contract

Sources: Revolving Loan Agreement (Wheeling Pittsburgh Corp /De/)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed; provided that no such consent shall be required for an assignment to a Qualified Assignee. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, ; and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and ~~9.8,~~ 9.8 each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender"”; provided, that, a participant shall not be entitled to receive any greater payment under Section 1.15 than the applicable Lender from whom it received its participation would have been entitled to receive with respect to the participation sold to such participant (unless the sale of the participation to the participant is made with the Borrowers’ prior written consent). Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.4(c). (e) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if; as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrowers, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and Agent and assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder. (h) Nothing contained in this Section 9 shall require the consent of any party for GE Capital to assign any of its rights in respect of any Swap Related Reimbursement Obligation.

Appears in 1 contract

Sources: Credit Agreement (Caraustar Industries Inc)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~8.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit ~~9.1(a)~~ 8.1 and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) ~~include~~ require a payment to Agent of an assignment fee of $~~3,500~~3,500 and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower, which shall not be unreasonably withheld, conditioned or delayed and shall be deemed granted if not objected to within three (3) Business Days following notice thereof to Borrower; provided that no such consent shall be required for an assignment to a Qualified Assignee. Notwithstanding the above, Agent may in its sole and absolute discretion permit any assignment by a Lender to a Person or Persons that are not Qualified Assignees; provided, that so long as no Event of Default has occurred and is continuing, such assignment shall also require Borrower’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. In the case of an assignment by a Lender under this Section ~~9.1~~8.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ all other Lenders hereunder. Each Qualified Assignee or other assignee shall comply with Section 1.12(d), as a Lender. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender.” In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 8.1(a), (a) ~~have been complied with. Agent hereby agrees~~ any Lender may at any time pledge the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to ~~provide Borrower with commercially reasonable~~ a Federal Reserve Bank, (b) any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor or pledge such Obligations and rights to trustee for the benefit of its investors and (c) any Lender may assign the Obligations to an Affiliate of such Lender or to a Person that is a Lender prior ~~written notice~~ to the date of ~~any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower~~such assignment. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.11, ~~1.15~~1.12, ~~1.16~~ 8.3 and ~~9.8~~9.1, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "“Lender",” provided, that no participant (including a participant that is already a Lender hereunder at the time of the sale of the participation) shall be entitled to receive any greater amount pursuant to Section 1.12 with respect to such participation than that to which the Lender would have been entitled to receive with respect to such participation if the Lender had not sold such participation. Each participant shall comply with Section 1.12(c) as a Lender. Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 8.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) For a period of ninety (90) days following the Closing Date, each Credit Party shall assist each Lender permitted to sell assignments or participations under this Section 8.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the prompt preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants, all on a timetable established by Agent in its sole discretion. For a period of ninety (90) days following the Closing Date, each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 5.5. In addition, following the 90-day period referenced above, upon the request of any Lender, each Credit Party shall use reasonable efforts to assist the Lenders in effectuating assignments or participations permitted hereunder. Agent shall maintain a “register” for recording the name, address, commitment and Loans owing to each Lender. The entries in such register shall be presumptive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrower, Agent and each Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Lender for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in such register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on such register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment Agreement; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The register described herein shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 9.13. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.11(a), increased costs or an inability to fund LIBOR Loans under Section 1.11(b), or withholding taxes in accordance with Section 1.12.

Appears in 1 contract

Sources: Credit Agreement (Playtex Products Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a ~~Qualified Assignee~~ Person of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, ~~Letter of Credit Obligations~~ and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (other than with respect to an assignment to another Lender and which consent shall not be unreasonably withheld or delayed with respect to a any other Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender (if it is an in- vestment fund, together with all other Lenders managed by the same investment advisor) shall have Commitments in an amount at least equal to $~~5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000~~5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation~~ Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, any Lender may assign the Obligations held by it in any amount to any other Lender and any Lender that is an investment fund may assign any portion of ~~which does not require consent of Borrower~~the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor, in each such instance, without regard to the $5,000,000 minimum assignment amount required above; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 1 contract

Sources: Credit Agreement (Ames Department Stores Inc)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~9.1 and all applicable required governmental or regulatory approval, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, ~~Loans~~Term Loan, ~~Letter of Credit Obligations and any Commitment~~ or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified ~~Assignee) and, so long as no Event of Default has occurred~~ Assignee and ~~is then continuing, Borrower (~~which consent ~~shall~~ is not ~~be unreasonably withheld~~ required by an assignment between Lenders or ~~delayed; provided, that any assignment~~ from a Lender to ~~Black Diamond Capital Management or any~~ an Affiliate of ~~its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h~~a Lender) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit ~~9.1(a)~~ 9.1 and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent and the Borrower that it is purchasing the applicable ~~Loans~~ Term Loan to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) except with respect to any assignment by a Lender to an Affiliate of such Lender, after giving effect to any such partial assignment, the assignee Lender shall have ~~Commitments~~ Term Loan Commitment in an amount at least equal to $~~5,000,000~~ 2,500,000 and the assigning Lender shall have retained ~~Commitments~~ Term Loan Commitment in an amount at least equal to $~~2,500,000;~~ 2,500,000 and (iv) ~~include~~ unless waived by Agent, require a payment to Agent of an assignment fee of $~~3,500~~3,500 (other than direct or indirect assignments from a Lender to an Affiliate of a Lender). Notwithstanding the above, Agent may in its sole and absolute discretion (subject to applicable law and regulation) permit any assignment by a Lender to a Person or Persons that are not Qualified Assignees. In the case of an assignment by a Lender that has become effective under this Section 9.1, (i) the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ all other Lenders hereunder and (aii) ~~have been complied with~~the assigning Lender shall be relieved of its obligations hereunder with respect to its Term Loan Commitment or assigned portion thereof and the Term Loan, and other interests assigned by it from and after the effective date of such assignment. ~~Agent~~ Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender.” In all instances, each Lender’s liability to make Term Loan hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Term Loan Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall (i) notify the Minnesota Racing Commission thereof in accordance with Section 5.1(b) and (ii) upon the request of Agent or such Lender, execute new Term Notes in exchange for the Term Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), (a) any Lender may at any time pledge the ~~consummation~~ Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, (b) any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor or pledge such Obligations and rights to a trustee for the benefit of ~~which does~~ its investors and (c) any Lender may assign the Obligations to an Affiliate of such Lender or to a Person that is a Lender prior to the date of such assignment. Notwithstanding any other provision of this Agreement to the contrary, neither the Lenders nor any of their successors or assigns shall assign or transfer any interest herein without obtaining a representation from such successor or assign that any such assignment or transfer would not ~~require consent~~ result in a non-exempt prohibited transaction under Section 406 of ~~Borrower~~ERISA or Section 4975 of the IRC with respect to the Plans or in a manner violative of applicable law or regulation. (b) Any participation by a Lender of all or any part of its ~~Commitments~~ Term Loan Commitment shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~2.8, ~~1.15~~2.9, ~~1.16~~ 9.3 and ~~9.8~~10.1, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "“Lender". .” Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor~~ or any other ~~Credit~~ Loan Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. Each Lender having sold a participation in any of its obligations, acting solely for this purpose as agent for the Borrower, shall maintain a register for the recordation of the names and addresses of such participants (and each change thereto, whether by assignment or otherwise) and the rights, interests or obligations of such participants and in any right to receive any payments hereunder. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Term Loan, the Term Notes or other Obligations owed to such Lender. (d) Agent shall maintain, on behalf of Borrower, in its offices a “register” for recording the name, address, commitment and Term Loan owing to each Lender. The entries in such register shall be conclusive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrower, Agent and each Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Lender for all purposes of this Agreement. The register described herein shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice. (e) A Lender may furnish any information concerning Loan Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 10.14. (f) No Lender, without the prior written consent of Borrower and Agent, shall assign or sell participations in any portion of its Term Loan or Term Loan Commitment to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 2.8(a), increased costs or an inability to fund LIBOR Loan under Section 2.8(b), or withholding taxes in accordance with Section 2.9.

Appears in 1 contract

Sources: Credit Agreement (Southwest Casino Corp)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee or any other Person of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed; provided that no such consent by the Borrower Representative shall be required for an assignment to a Qualified Assignee. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation~~ Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank or a Person which otherwise then qualifies as a Qualified Assignee in respect of ~~which does not require consent of Borrower~~a warehousing, “repo” or similar arrangement, and any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank or such other Person shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender"”. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.4(c). (e) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrowers, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and Agent and without paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 1 contract

Sources: Credit Agreement (Rowe Companies)

Assignment and Participations. (a) ~~Subject~~ Borrower and Servicer consent to ~~the terms~~ any Lender's sale of ~~this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell~~ participations in, at any time or times, the Loan Documents, ~~Loans, Letter of Credit Obligations~~ Revolving Loan and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender of its interests in the Revolving Loan and the Commitments shall: (i) require the consent of Agent and Borrower (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") " substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable ~~Loans~~ Revolving Loan to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment by the assigning Lender to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower. (b) Any participation by a The assigning Lender ~~of all or any part~~ shall be relieved of its ~~Commitments shall be made with the understanding that all amounts payable by Borrower~~ obligations hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect ~~to, any Loan in which~~ to its Commitments or assigned portion thereof from and after the date of such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents)assignment. ~~Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8,~~ Borrower hereby acknowledges and agrees that ~~a participation~~ any assignment shall give rise to a direct obligation of Borrower to the ~~participant~~ assignee and that the ~~participant~~ assignee shall be considered to be a "Lender". ~~Except as set forth~~ In all instances, each Lender's liability to make a Revolving Credit Advance hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the ~~preceding sentence~~Notes, ~~neither Borrower nor~~ if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurredLoan Document.

Appears in 1 contract

Sources: Credit Agreement (Credit Store Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified ~~Assignee~~ Transferee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, ~~Loans, Letter of Credit Obligations~~ Loans and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified ~~Assignee~~Transferee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit ~~9.1(a)~~ L and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) (except with respect to any assignment by a Lender to an Affiliate of such Lender) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~3,000,000; and (iv) ~~include~~ require a payment to Agent of an assignment fee of $3,500. Notwithstanding the above, Agent may, in its sole and absolute discretion, permit any assignment by a Lender to a Person or Persons that are not Qualified Transferee; provided, that, so long as no Event of Default has occurred and is continuing, Borrower’s Agent has consented to such assignment, which consent shall not be unreasonably withheld or delayed. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof and the Loans and other interests assigned by it from and after the date of such assignment. Borrowers hereby ~~agrees to provide Borrower with commercially reasonable prior written notice of~~ acknowledge and agree that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender.” In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), (A) any Lender may at any time pledge the ~~consummation~~ Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank or to any Person providing funding to such Lender, (B) any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor or pledge such Obligations and rights to trustee for the benefit of ~~which does not require consent~~ its investors and (C) any Lender may assign the Obligations to an Affiliate of ~~Borrower~~such Lender or to a Person that is a Lender prior to the date of such assignment. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~2.16, ~~1.15~~2.19, ~~1.16~~ 8.12 and ~~9.8~~9.3, ~~Borrower acknowledges~~ Borrowers acknowledge and ~~agrees~~ agree that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender". .” Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor~~ or any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party shall assist each Lender permitted to sell assignments or participations under this Section 9.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the prompt preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants, all on a timetable reasonably established by Agent. Each Credit Party executing this Agreement shall certify, to the same extent and on the same basis as certified in this Agreement, the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any projections or statements of forecasted consolidated income and statements of forecasted consolidated balance sheets delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 4.5. Agent shall maintain, on behalf of Borrowers, in its offices located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ a “register” for recording the name, address, commitment and Loans owing to each Lender. The entries in each such register shall be presumptive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrowers, Agent and each Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Lender for all purposes of this Agreement. Each such register described herein shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 8.7. (f) Each Lender agrees to and shall be bound by the same restrictions, terms and conditions that apply to Agent under any Business Associate Agreement that may be entered into from time to time by and among Agent and any Credit Party. The requirements of this Section 9.1(f) shall apply to each Lender who is a party to this Agreement as the date first written above and to any individual or entity who becomes a Lender at any time thereafter.

Appears in 1 contract

Sources: Credit Agreement (Sunlink Health Systems Inc)

Assignment and Participations. (a) ~~Subject to the terms of this Section 9.1, any~~ Any Lender may ~~make an assignment to a Qualified Assignee of, or~~ sell participations in, or assign at any time or times, the Loan Documents, Loans, ~~Letter of Credit Obligations~~ and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Administrative Agent and Borrower (which ~~consent~~ shall not be unreasonably withheld or delayed ~~with respect to a Qualified Assignee) and, so long as no Event of Default has occurred~~ and ~~is then continuing, Borrower (~~which consent shall not be ~~unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no~~ required after an Event of ~~Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h~~Default) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "Assignment Agreement") substantially in the ~~form~~ from attached hereto as Exhibit ~~9.1(a~~10.1 (a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Administrative Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Administrative Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Administrative Agent of an assignment fee of $~~3,500~~3,500.00. In the case of an assignment by a Lender under this Section ~~9.1~~10.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower and Guarantor hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Administrative Agent or any Lender assigns or otherwise transfers all or any part of a Note, Administrative Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Administrative Agent or such Lender, execute new Notes in exchange for the Notes being assigned. Notwithstanding the foregoing provisions of this Section 10.1 (a~~) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a~~), any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the ~~consummation of which does not require consent of Borrower~~other Loan Documents to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~2.10, ~~1.15~~2.12, ~~1.16~~ 2.13 and ~~9.8~~10.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.acknowledges

Appears in 1 contract

Sources: Credit Agreement (Presstek Inc /De/)

Assignment and Participations. (a) ~~Subject to the terms~~ The Lender may assign all (but not less than all) of its rights and obligations under or in respect of this ~~Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times~~Agreement, the ~~Loan Documents~~Term Loan, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), Notes and the Loan Documents to an Affiliate of the Lender which is organized under state law in the United States, which assignee shall become a party to this Agreement as the Lender by execution of an ~~assignment agreement~~ Assignment and Acceptance in a form acceptable to the Lender (an "Assignment and Acceptance"). Except as provided in this Section 9.13, the Lender may not assign this Agreement", the Term Loan, the Notes or any other Loan Documents. (b) ~~substantially~~ Upon such execution and delivery of and, from and after the effective date specified in the ~~form attached hereto as Exhibit 9.1(a)~~ Assignment and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignmentAcceptance, the assignee thereunder shall become a party to this Agreement and to the other Loan Documents and, have the rights and obligations of the Lender ~~shall have Commitments in an amount at least equal to $5,000,000~~ hereunder and thereunder and the assigning Lender shall ~~have retained Commitments in an amount at least equal to $2,500,000;~~ relinquish its rights and ~~(iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender~~ be released from its obligations under this ~~Section 9.1,~~ Agreement and the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrowerother Loan Documents. (bc) ~~Any participation by~~ The Lender may sell participations to any Person that is a ~~Lender of~~ "qualified institutional buyer" as defined in Rule 144A (as promulgated under the Securities Act (or any successor provision) as it may be amended from time to time) in or to all or ~~any part~~ a portion of its ~~Commitments~~ rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of the Term Loan owing to it); provided, that (i) the Lender's obligations under this Agreement and the other Loan Documents shall ~~be made~~ remain unchanged, (ii) the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and Borrowers shall continue to deal solely and directly with the ~~understanding that~~ Lender in connection with the Lender's rights and obligations under this Agreement and the other Loan Documents, and (iii) the Participant shall not have any rights under this Agreement or any of the other Loan Documents (the Participant's rights against the Lender in respect of such participation to be those set forth in the agreement executed by the Lender in favor of the Participant relating thereto) and all amounts payable by any Borrower hereunder shall be determined as if ~~that~~ the Lender had not sold such participation~~, and that the holder of any such participation shall not be entitled~~ . (d) Borrowers agree to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely cooperate with the Lender ~~selling a participation as if no~~ in connection with any assignments or participations permitted under this Section 9.13 and upon request shall take such ~~sale had occurred~~commercially reasonable actions in order to enable or effect any such assignment or participation. The assigning Lender and any assignee of the Lender shall comply with all applicable laws, rules and regulations in connection with and such assignment or participation.

Appears in 1 contract

Sources: Loan Agreement (Lexington Precision Corp)

Appears in 1 contract

Sources: Credit Agreement (Telex Communications International LTD)

Assignment and Participations. (a1) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $~~3,500~~3,500 and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower, which shall not be unreasonably withheld or delayed; provided that no such consent shall be required for an assignment to a Qualified Assignee. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, in accordance with this Section ~~9.1(a)~~9.1, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the ~~consummation~~ request of ~~which does not require consent of Borrower~~Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. (b2) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (3) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (4) Borrower shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Borrower shall certify the correctness, completeness and accuracy of all descriptions of Borrower and its affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 3.4(2). (5) A Lender may furnish any information concerning Borrower in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (6) So long as no Event of Default has occurred and is continuing, no Lender or SPC (as hereinafter defined) shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the Borrower would be subject to any payment or indemnity obligations or liability with respect to capital adequacy or similar requirements under Section 1.16(1), increased costs under Section 1.16(2), or withholding taxes in accordance with Section 1.15(1). (7) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may, provided same would not result in any payment or indemnity obligation or liability on the part of Borrower in respect of capital adequacy or similar requirements under Section1.16(1), increased costs under Section 1.16(2) or withholding taxes in accordance with Section 1.15(1), grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrower, the option to provide to Borrower all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrower and Agent and without paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (subject to the terms of Section 9.1(6) provided same is consented to by Borrower and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and

Appears in 1 contract

Sources: Credit Agreement (Solo Cup CO)

Assignment and Participations. ~~(a)~~ Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower, which shall not be unreasonably withheld or delayed; provided that no such consent shall be required for an assignment to a Qualified Assignee. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender." In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower. (b)~~ Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant effective upon delivery of written notice to Borrower of such participation and the participant shall be considered to be a "Lender". ." Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by them and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 3.4(c). Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8.

Appears in 1 contract

Sources: Credit Agreement (Gottschalks Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan ~~Documents, Loans, Letter of Credit Obligations~~ Documents and ~~any Commitment~~ Loans or any portion thereof or interest ~~therein~~therein (provided that assignments of the Term Loan shall not exceed $5,000,000 in aggregate principal amount), including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 1,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~1,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower. (b) Any participation by a The assigning Lender ~~of all or any part~~ shall be relieved of its ~~Commitments shall be made with the understanding that all amounts payable by Borrower~~ obligations hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect ~~to, any Loan in which~~ to its Commitments or assigned portion thereof from and after the date of such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents)assignment. ~~Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8,~~ Borrower hereby acknowledges and agrees that ~~a participation~~ any assignment shall give rise to a direct obligation of Borrower to the ~~participant~~ assignee and that the ~~participant~~ assignee shall be considered to be a "“Lender"”. ~~Except~~ In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) In addition to the other rights provided in this Section 9.1, each Lender may, (x) with notice to the Agent, grant to an SPV the option to make all or any part of any Loan that such Lender would otherwise be required to make hereunder (and the exercise of such option by such SPV and the making of Loans pursuant thereto shall satisfy the obligation of such Lender to make such Loans hereunder) and such SPV may assign to such Lender the right to receive payment with respect to any Obligation and (y) without notice to or consent from the Agent or the Borrower, (i) sell participations to one or more Persons in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Term Loan) and (ii) transfer its rights to receive payments hereunder to one or more Affiliates (a “Transferee”); provided, however, that, whether as ~~set forth~~ a result of any term of any Loan Document or of such grant, participation or transfer, (i) no such SPV, participant or Transferee shall have a commitment, or be deemed to have made an offer to commit, to make Loans hereunder, and, except as provided in the ~~preceding sentence~~applicable option agreement, ~~neither Borrower nor any other Credit Party~~ none shall ~~have~~ be liable for any obligation ~~or duty to~~ of such Lender hereunder, (ii) such Lender’s rights and obligations, and the rights and obligations of the Loan Parties and the secured parties towards such Lender under any ~~participant. Neither Agent nor any Lender (~~Loan Document shall remain unchanged and each other ~~than the Lender selling a participation)~~ party hereto shall ~~have any duty to any participant and may~~ continue to deal solely with such Lender, which shall remain the registered holder of the Obligations, except that (A) each such participant and SPV shall be entitled to the benefit of Sections 1.15 and 1.16, but only to the extent such participant or SPV delivers the tax forms such Lender is required to collect pursuant hereto and then only to the extent of any amount to which such Lender would be entitled in the absence of any such grant or participation and (B) each such SPV may receive other payments that would otherwise be made to such Lender with respect to Loans funded by such SPV to the extent provided in the applicable option agreement and set forth in a notice provided to the Agent by such SPV and such Lender, provided, however, that in no case (including pursuant to clause (A) or (B) above) shall an SPV, participant or Transferee have the right to enforce any of the terms of any Loan Document, and (iii) the consent of such SPV, participant or Transferee shall not be required (either directly, as a restraint on such Lender’s ability to consent hereunder or otherwise) for any amendments, waivers or consents with respect to any Loan Document or to exercise or refrain from exercising any powers or rights such Lender may have under or in respect of the Loan Documents (including the right to enforce or direct enforcement of the Obligations), except with respect to an SPV or a participant for those described in clauses 11.2(c)(ii) or (iii) with respect to amounts, or dates fixed for payment of amounts, to which such participant or SPV would otherwise be entitled and, in the case of participants, except for those described in Section 11.2(c)(ii) or (iii) (or amendments, consents and waivers with respect to Section 11.2(c)(ii) or (iii) the release of all or substantially all of the Collateral). No party hereto shall institute against any SPV grantee of an option pursuant to this clause (b) any bankruptcy, reorganization, insolvency, liquidation or similar proceeding, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper of such SPV; provided, however, that each Lender having designated an SPV as such agrees to indemnify each Indemnitee against any liability that may be incurred by, or asserted against, such Indemnitee as a result of failing to institute such proceeding (including a failure to get reimbursed by such SPV for any such liability). The agreement in the preceding sentence shall survive the termination of the Commitments and the payment in full of the Obligations. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a ~~participation~~ potential Lender or participant, if, as if of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) In addition to the other rights provided in this Section 9.1, each Lender may grant a security interest in, or otherwise assign as collateral, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Loans), to (A) any federal reserve bank (pursuant to Regulation A of the Federal Reserve Board), without notice to the Agent or (B) any holder of, or trustee for the benefit of the holders of, such Lender’s securities by notice to the Agent; provided, however, that no such ~~sale had occurred~~holder or trustee, whether because of such grant or assignment or any foreclosure thereon (unless such foreclosure is made through an assignment in accordance with clause (a) above), shall be entitled to any rights of such Lender hereunder and no such Lender shall be relieved of any of its obligations hereunder.

Appears in 1 contract

Sources: Credit Agreement (Navarre Corp /Mn/)

Assignment and Participations. (a1) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ a sale of participations in, at any time or times, the Loan Documents, its Loans, ~~Letter of Credit Obligations and any~~ its Supplemental Loan Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a~~) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent~~); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Administrative Agent that it is purchasing the applicable ~~Loans~~ Obligations to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have ~~Commitments~~ Loans and/or a Supplemental Loan Commitment in an amount at least equal to ~~$5,000,000~~ US$1,000,000 and the assigning Lender shall have retained ~~Commitments~~ Loans and/or a Supplemental Loan Commitment in an amount at least equal to ~~$2,500,000~~US$1,000,000; ~~and~~ (iv) include a payment to Administrative Agent of an assignment fee of ~~$3,500~~Cdn$1,000 (which payment may be waived by the Administrative Agent in its sole discretion), and (v) include reasonable prior notice to Borrower of such assignment. In the case of an assignment by a Lender under this Section 9.1, the assignee Lender shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Loans and/or Supplemental Loan Commitment or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee Lender and that the assignee Lender shall be considered to be a "Lender". Each Supplemental Lender's liability to make Supplemental Loans hereunder shall be several and not joint and shall be limited to the Supplemental Loan Commitment of such Supplemental Lender. In the event any Lender assigns or ~~sale contemplated by~~ otherwise transfers all or any part of the Obligations, in accordance with this Section ~~9.1(a)~~9.1, ~~the consummation of which does not require consent of~~ such Lender shall so notify Borrower. (b2) Any sale of a participation by a Lender of all or any part of its ~~Commitments~~ Loans or Supplemental Loan Commitment shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither ~~Agent~~ Agents nor any Lender (other than ~~the~~ Lender selling a participation) shall have any duty to any participant and may continue to deal solely with ~~the~~ Lender selling a participation as if no such sale had occurred. (3) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agents and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loan Documents, Loans, Supplemental Loan Commitment, the Notes, or other Obligations owed to such Lender. (4) A Lender may furnish any information concerning Borrower or its Subsidiaries in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8.

Appears in 1 contract

Sources: Credit Agreement (Sr Telecom Inc)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~8.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee~~) and~~, ~~so long as no Event of Default has occurred~~ and ~~is then continuing, Borrower (~~which consent ~~shall~~ is not ~~be unreasonably withheld~~ required for an assignment between Lenders or ~~delayed; provided, that any assignment~~ from a Lender to ~~Black Diamond Capital Management~~ an Affiliate or ~~any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h~~a Lender) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit ~~9.1(a)~~ 8.1 and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) except with respect to any assignment by a Lender to an Affiliate of such Lender, after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 2,500,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; ~~and~~ (iv) ~~include~~ require a payment to Agent of an assignment fee of $~~3,500~~3,500 and (v) provided, that, no Event of Default shall have occurred or be continuing, require the consent of Borrower Representative (which consent shall not be unreasonably withheld or delayed). In the case of an assignment by a Lender under this Section ~~9.1~~8.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ all other Lenders hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrowers hereby acknowledge and agree that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender.” In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 8.1(a), (a) ~~have been complied with. Agent hereby agrees~~ any Lender may at any time pledge the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to ~~provide Borrower with commercially reasonable~~ a Federal Reserve Bank, (b) any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor or pledge such Obligations and rights to trustee for the benefit of its investors and (c) any Lender may assign the Obligations to an Affiliate of such Lender or to a Person that is a Lender prior ~~written notice~~ to the date of ~~any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower~~such assignment. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.10, ~~1.15~~1.11, ~~1.16~~ 8.3 and ~~9.8~~9.1, ~~Borrower acknowledges~~ Borrowers acknowledge and ~~agrees~~ agree that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender".” Notwithstanding the foregoing, at the time of each assignment or sale of a participation pursuant to this Section 8.1 to a Person which is not already a Lender hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the IRC) for U.S. Federal income tax purposes, the assignee Lender or holder of such participation shall, to the extent legally entitled to do so, provide to the relevant Borrower the appropriate Certificate of Exemption and “Non Bank Certificate” described in Section 1.11(c). To the extent that an assignment or sale of a participation of all or any portion of a Lender’s Commitments and related outstanding Obligations pursuant to this Section 8.1 would, at the time of such assignment, result in increased costs under Section 1.10 or 1.11 from those being charged by the assigning or selling Lender prior to such assignment, then such Borrowers shall not be obligated to pay such additional amounts (although the relevant Borrowers, in accordance with and pursuant to the other provisions of this Agreement, shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment or sale of participation). Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor~~ or any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 8.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party shall assist each Lender permitted to sell assignments or participations under this Section 8.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be reasonably requested and the prompt preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants, all on a timetable established by Agent in its sole discretion. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 5.5. Agent shall maintain, on behalf of Borrowers, in its offices located at 5▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ or such other office as Agent shall determine a “register” for recording the name, address, commitment and Loans owing to each Lender. The entries in such register shall be presumptive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrowers, Agent and each Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Lender for all purposes of this Agreement. The register described herein shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 9.13. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.10(a), increased costs or an inability to fund LIBOR Loans under Section 1.10(b), or withholding taxes in accordance with Section 1.11. (g) Nothing contained in this Section 8 shall require the consent of any party for GE Capital to assign any of its rights in respect of any Swap Related Reimbursement Obligation.

Appears in 1 contract

Sources: Credit Agreement (Golfsmith International Holdings Inc)

Assignment and Participations. (a1) ~~Subject to the terms of this Section 9.1, any~~ Each Lender may ~~make an assignment to a Qualified Assignee of, or sell participations in~~assign, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Revolving Loan Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder~~. Any~~ , whether evidenced by a writing or not; provided, that any assignment by a Lender ~~shall:~~ shall (ia) require the consent of Agent ~~(which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee)~~ and, so long as no Event of Default has occurred and is ~~then~~ continuing, Borrower Representative (which consent shall only be in respect of the identity of the prospective assignee and not in respect of the terms of the assignment and shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "~~Assignment Agreement")~~ ASSIGNMENT AGREEMENT" substantially in the form attached hereto as Exhibit ~~9.1(a~~9.1(1) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (iib) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (~~iii~~c) not be made to an entity that is a non-resident of Canada for purposes of the ITA, unless an Event of Default has occurred and is continuing at the time of such assignment; (d) if a partial assignment, be in an amount at least equal to US$5,000,000, and, after giving effect to any such partial assignment, the ~~assignee~~ assigning Lender shall have ~~Commitments~~ retained a Revolving Loan Commitment in an amount at least equal to ~~$5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000~~US$5,000,000; and (ive) include a payment to Agent of an assignment fee of $US$3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Revolving Loan Commitment or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "LENDER". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the Revolving Loan Commitment. In the event Agent or ~~sale contemplated by this Section 9.1(a)~~any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the ~~consummation~~ request of ~~which does not require consent of Borrower~~Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. (b2) ~~Any participation by a~~ Each Lender of may sell participations in all or any part of its ~~Commitments shall be made with~~ Revolving Loan Commitment without the ~~understanding that~~ consent of any Credit Party; provided, (i) all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (ia) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (iib) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (~~iii~~c) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents)) and (ii) no such participation shall be sold to an entity that is a non-resident of Canada for the purposes of the ITA, unless an Event of Default has occurred and is continuing at the time of such sale. ~~Solely~~ Without limiting the foregoing, solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, ~~Borrower~~ each Credit Party acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ the Credit Parties to the participant in respect of the portion of the Revolving Loan Commitment sold to such participant, and the participant shall be considered to be a "~~Lender~~LENDER". Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 1 contract

Sources: Credit Agreement (Hockey Co)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~9.1 and the establishment of a Loan Account pursuant to Section 1.12(b), any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be required for an assignment to a Lender or any Affiliate of a Lender and shall not be unreasonably withheld or delayed with respect to a any other Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") " substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 20,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~20,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $~~3,500~~5,000 and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower, which shall not be unreasonably withheld or delayed; provided that no such consent shall be required for an assignment to a Qualified Assignee. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.and

Appears in 1 contract

Sources: Credit Agreement (PAV Republic, Inc.)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~8.1, any Lender may make ~~an assignment~~ assignments to a ~~Qualified Assignee~~ Person (other than a natural Person or to any Credit Party or an Affiliate thereof) of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender (a “Sale”) shall be for a fixed and not a varying percentage of the assigning Lender’s respective Loans, Commitments and Letter of Credit Obligations (but do not have to be ratable between the Revolving Loans and Term Loans) and shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or ~~delayed with respect to a Qualified Assignee~~delayed) ~~and, so long as no Event of Default has occurred and is then continuing, Borrower~~ if (~~which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require~~ A) in the ~~consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution~~ case of an assignment ~~agreement~~ of any unfunded Commitment, such assignment is to any Person that is not a Lender with an existing Commitment in respect of the same facility as the assigned Commitment, an Affiliate of such assigning Lender or an investment fund managed by the same investment advisor as the assigning Lender, or (~~an "Assignment Agreement"~~B) ~~substantially~~ in the ~~form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to~~case of an assignment of any Loan, ~~and acknowledged by, Agent~~such assignment is not a Lender Group Assignment; (ii) ~~be conditioned on such assignee~~ except with respect to any Lender ~~representing to~~ Group Assignment or as approved in writing by the ~~assigning Lender~~ Agent and ~~Agent that it is purchasing the applicable Loans to be assigned to it for its own account~~Borrower, ~~for investment purposes and not with a view to the distribution thereof; (iii)~~ after giving effect to any such partial assignment, the assignee Lender shall have Loans and Commitments in an amount at least equal to $~~5,000,000~~ 1,000,000 and the assigning Lender shall have retained Loans and Commitments in an amount at least equal to $~~2,500,000~~1,000,000 (unless all of the Loans and Commitments of such assigning Lender have been assigned); (iii) require the consent of Borrower (which consent shall not be unreasonably withheld or delayed) if (A) no Event of Default has occurred and is continuing, and (B) such assignment is not a Lender Group Assignment; and (iv) ~~include~~ if such assignment is an assignment of Revolving Loans or a ~~payment~~ Revolving Loan Commitment, require the consent of the Swingline Lender and L/C Issuer (which consent shall not be unreasonably withheld or delayed). The parties to each Sale (other than those described in clause (g) or (h) below) shall execute and deliver to Agent an Assignment via an electronic settlement system designated by Agent (or, if previously agreed with Agent, via a manual execution and delivery of the Assignment) evidencing such Sale, together with any existing Note subject to such Sale (or any affidavit of loss therefor acceptable to Agent), any tax forms required to be delivered pursuant to Section 1.9 and payment of an assignment fee in the amount of $3,500, provided that (1) if a Sale is a Lender Group Assignment under clause (ii) or (iii) of the definition thereof then no assignment fee shall be due in connection with such Sale, and (2) if a Sale by a Lender is not a Lender Group Assignment under Clause (ii) or (iii) of the definition thereof, and concurrently such Lender makes a Lender Group Assignment under Clause (ii) or (iii) of the definition thereof, then only one assignment fee of $3,500 shall be due in connection with such Sale; provided further that if a Sale is an assignment whereby GE Capital is either an assignee or assignor thereunder, then, so long as GE Capital is a Co-Administrative Agent hereunder, no such assignment fee shall be due and owing in connection with such assignment. In Upon receipt of all the foregoing, and conditioned upon such receipt and, if such Assignment is not a Lender Group Assignment, upon Agent (and Borrower, if applicable) consenting to such Assignment (if required), from and after the effective date specified in such Assignment, Agent shall record or cause to be recorded in the Register the information contained in such Assignment. Subject to the recording of an Assignment by Agent in the Register pursuant to Section 1.7(b), (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment, shall have the rights and obligations of a Lender, (ii) any applicable Note shall be transferred to such assignee through such entry and (iii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment, relinquish its rights (except for those surviving the termination of the Commitments and the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto). Borrower hereby acknowledges and agrees that any assignment by shall give rise to a ~~Lender under this Section 9.1,~~ direct obligation of Borrower to the assignee and that the assignee shall ~~have~~be considered to be a “Lender.” In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the ~~extent~~ applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such ~~assignment~~Lender shall so notify Borrower and Borrower shall, upon the ~~same rights~~request of Agent or such Lender, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a)execute new Notes in exchange for the Notes, ~~the consummation of which does not require consent of Borrower~~if any, being assigned. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral or release any one or more Guarantors if the effect of such release would be to diminish all or substantially all of the collective value of the credit support provided by the Guaranties (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.8, ~~1.15~~1.9, ~~1.16~~ 8.3 and ~~9.8~~9.1, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "“Lender". .” Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 8.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Holdings and Borrower shall assist each Lender permitted to sell assignments or participations under this Section 8.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the prompt preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants, all on a timetable established by Agent in its sole discretion. Holdings and Borrower shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Budget delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 5.5. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 9.14. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.8(a), increased costs or an inability to fund LIBOR Loans under Section 1.8(b), or withholding taxes in accordance with Section 1.9. (g) In addition to the other rights provided in this Section 8.1, each Lender may grant a security interest in, or otherwise assign as collateral, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Loans), to (A) any federal reserve bank (pursuant to Regulation A of the Federal Reserve Board), without notice to Agent or (B) any holder of, or trustee for the benefit of the holders of, such Lender’s Indebtedness or equity securities, by notice to Agent; provided, however, that no such holder or trustee, whether because of such grant or assignment or any foreclosure thereon (unless such foreclosure is made through an assignment in accordance with clause (a) above), shall be entitled to any rights of such Lender hereunder and no such Lender shall be relieved of any of its obligations hereunder. (h) In addition to the other rights provided in this Section 8.1, each Lender may, (x) with notice to Agent, grant to an SPV the option to make all or any part of any Loan that such Lender would otherwise be required to make hereunder (and the exercise of such option by such SPV and the making of Loans pursuant thereto shall satisfy the obligation of such Lender to make such Loans hereunder) and such SPV may assign to such Lender the right to receive payment with respect to any Obligation and (y) without notice to or consent from Agent or Borrower, sell participations to one or more Persons in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Term Loans, Revolving Loans and Letters of Credit); provided, however, that, whether as a result of any term of any Loan Document or of such grant or participation, (i) no such SPV or participant shall have a commitment, or be deemed to have made an offer to commit, to make Loans hereunder, and, except as provided in the applicable option agreement, none shall be liable for any obligation of such Lender hereunder, (ii) such Lender’s rights and obligations, and the rights and obligations of the Credit Parties and the Secured Parties towards such Lender, under any Loan Document shall remain unchanged and each other party hereto shall continue to deal solely with such Lender, which shall remain the holder of the Obligations in the Register, except that (A) each such participant and SPV shall be entitled to the benefit of Section 1.9, but, with respect to Section 1.9(c), only to the extent such participant or SPV delivers the tax forms such Lender is required to collect pursuant to Section 1.9 and then only to the extent of any amount to which such Lender would be entitled in the absence of any such grant or participation and (B) each such SPV may receive other payments that would otherwise be made to such Lender with respect to Loans funded by such SPV to the extent provided in the applicable option agreement and set forth in a notice provided to Agent by such SPV and such Lender, provided, however, that in no case (including pursuant to clause (A) or (B) above) shall an SPV or participant have the right to enforce any of the terms of any Loan Document, and (iii) the consent of such SPV or participant shall not be required (either directly, as a restraint on such Lender’s ability to consent hereunder or otherwise) for any amendments, waivers or consents with respect to any Loan Document or to exercise or refrain from exercising any powers or rights such Lender may have under or in respect of the Loan Documents (including the right to enforce or direct enforcement of the Obligations), except for those described in clauses (ii) and (iii) of Section 9.2(c) with respect to amounts, or dates fixed for payment of amounts, to which such participant or SPV would otherwise be entitled and, in the case of participants, except for those described in clause (v) of Section 9.2(c). No party hereto shall institute (and each of Borrower and Holdings shall cause each other Credit Party not to institute) against any SPV grantee of an option pursuant to this clause (h) any bankruptcy, reorganization, insolvency, liquidation or similar proceeding, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper of such SPV; provided, however, that each Lender having designated an SPV as such agrees to indemnify each Credit Party against any Liability that may be incurred by, or asserted against, such Credit Party as a result of failing to institute such proceeding (including a failure to get reimbursed by such SPV for any such Liability). The agreement in the preceding sentence shall survive the termination of the Commitments and the payment in full of the Obligations.

Appears in 1 contract

Sources: Credit Agreement (TNS Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, ~~Letter of Credit Obligations~~ and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have ~~Commitments~~ Commitment with respect to the Loans in an amount at least equal to $~~5,000,000~~ 1,000,000 and the assigning Lender shall have retained ~~Commitments~~ Commitment in an amount at least equal to $~~2,500,000~~1,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its ~~Commitments~~ Commitment shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.10, ~~1.15~~1.12, ~~1.16~~ 1.13 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender"”; provided, that no participant (including a participant that is already a Lender hereunder at the time of the sale of the participation) shall be entitled to receive any greater amount pursuant to Section 1.13 and this Section 9.1(b) with respect to such participation than that to which the Lender would have been entitled to receive with respect to such participation if the Lender had not sold such participation. Each participant shall comply with Section 1.12(c) as a Lender. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and Instruments as shall be reasonably requested and, if reasonably requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any Projections delivered by Borrowers shall be a copy of those delivered pursuant to Section 3.4(c) and shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.4(c). (e) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.13(a), increased costs under Section 1.13(b), or withholding taxes in accordance with Section 1.12(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrowers, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and Agent and assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 1 contract

Sources: Credit Agreement (Penn Traffic Co)

Assignment and Participations. Subject to the provisions of paragraphs (a) ~~Subject~~ and (b) below, the Borrower hereby consents to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. , whether evidenced by a writing or not. (a) Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Agent ~~(which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee)~~ and, ~~so long as no~~ absent the occurrence and continuance of an Event of ~~Default has occurred and is then continuing~~Default, Borrower (which ~~consent~~ consent, in each case, shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "Assignment Agreement") " substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; and (v) absent the occurrence and continuance of an Event of Default, be only to an Eligible Assignee. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower. (b) Any participation by it would if it were a Lender ~~of all or any part~~ hereunder. The assigning Lender shall be relieved of its ~~Commitments shall be made with the understanding that all amounts payable by Borrower~~ obligations hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect ~~to, any Loan in which~~ to its Commitments or assigned portion thereof from and after the date of such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents)assignment. ~~Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8,~~ Borrower hereby acknowledges and agrees that ~~a participation shall~~ any assignment will give rise to a direct obligation of Borrower to the ~~participant~~ assignee and that the ~~participant~~ assignee shall be considered to be a "Lender". ~~Except as set forth~~ In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of a Note, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the ~~preceding sentence~~Notes being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), ~~neither Borrower nor~~ any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurredLoan Document.

Appears in 1 contract

Sources: Credit Agreement (American Physician Partners Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed; provided that no such consent shall be required for an assignment to a Qualified Assignee. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender"”. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.8. (e) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrowers, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and Agent and without paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 1 contract

Sources: Credit Agreement (Handleman Co /Mi/)

Assignment and Participations. ~~(a) Subject~~ This Agreement shall be binding upon and inure to the ~~terms~~ benefit of ~~this Section 9.1~~the parties and their respective Successors and assigns, ~~any Lender~~ provided that Borrower may ~~make an assignment to a Qualified Assignee of,~~ not assign or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower. (b) Any participation by a Lender of transfer all or any part of its ~~Commitments~~ rights or obligations hereunder or under any other Loan Document without the prior written consent of Agent and all Lenders, and any such assignment or transfer purported to be made without such consent shall be ineffective. Any Lender may at any time sell to any Eligible Assignee participation interests in its Loans and Commitment. Such sales may be made without the consent of Agent, any other Lender or Borrower provided, however, (a) that the selling Lender shall have provided Borrower with prior written notice of the sale of any participation interest in any Loan or in such Lender's Commitment; and (b) that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant's consent can be required for proposed changes to the timing or amount of principal payments or changes to the timing, rate or amount of payments of interest or fees). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. Any Lender may assign or otherwise transfer to any Eligible Assignee all or any part of its interest under the Loan Documents pursuant to an Assignment and Assumption Agreement, substantially in the form of Exhibit D hereto (y) without the consent of Agent, any other Lender, or Borrower to any of the assigning Lender's affiliates or to any other Lender; or (z) with the prior written consent of Agent and, if no Event of Default shall have occurred and be continuing, Borrower, (such consents not to be unreasonably withheld or delayed) but without the consent of the other Lenders, to any other Eligible Assignee provided, however, that in either case no such assignment (as distinguished from the sale of a participation) other than an assignment of a Lender's entire interest under the Loan Documents (i) shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting in an amount less than Ten Million Dollars (i$10,000,000) ~~any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates,~~ nor (ii) ~~any extension~~ shall be made if after giving effect to such assignment the aggregate amount of the ~~scheduled amortization~~ Loans and unused Commitment of the ~~principal amount~~ assigning Lender would be less than Ten Million Dollars ($10,000,000) and provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall pay to Agent a fee of Two Thousand Five Hundred Dollars ($2,500) for each proposed assignee that is not then a Lender or an affiliate thereof. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against Borrower under the Loan Documents (excepting however, in ~~which~~ the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. Except to the extent otherwise required by the context of this Agreement, the word "Lender" where used in this Agreement shall mean and include any holder of a Note originally issued to a Lender hereunder, and each such holder ~~participates or~~ shall be bound by and have the ~~final maturity date thereof, and (iii) any release~~ benefits of ~~all or substantially all~~ this Agreement the same as if such holder had been a signatory hereto. Any outright assignment of ~~the Collateral (other than~~ a Lender's interest hereunder to another Lender made in ~~accordance~~ conformance with the terms of this ~~Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that~~ Section 11.6 shall result in a ~~participation shall give rise to a direct obligation of Borrower~~ corresponding adjustment to the ~~participant~~ selling and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant purchasing Lenders' Commitments and ~~may continue to deal solely with the Lender selling a participation as if no such sale had occurred~~Percentage Interests.

Appears in 1 contract

Sources: Credit Agreement (Micron Electronics Inc)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~8.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee~~) and~~, ~~so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed;~~ provided, that Agent may in its sole and absolute discretion permit any assignment by a Lender to ~~Black Diamond Capital Management~~ a Person or ~~any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h~~Persons that are not Qualified Assignees) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "Assignment Agreement") " substantially in the form attached hereto as Exhibit ~~9.1(a)~~ 8.1 and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) ~~include~~ require a payment to Agent of an assignment fee of $~~3,500~~3,500 and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed and shall be deemed granted if not objected to within three (3) Business Days following notice thereof to Borrower Representative. In the case of an assignment by a Lender under this Section ~~9.1~~8.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ all other Lenders hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrowers hereby acknowledge and agree that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender." In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 8.1(a), (a) ~~have been complied with. Agent hereby agrees~~ any Lender may at any time pledge the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to ~~provide Borrower with commercially reasonable~~ a Federal Reserve Bank, (b) any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor or pledge such Obligations and rights to trustee for the benefit of its investors and (c) any Lender may assign the Obligations to an Affiliate of such Lender or to a Person that is a Lender prior ~~written notice~~ to the date of such assignment; provided, in each case, that no such pledge or assignment of Obligations made solely in reliance on this sentence shall release such Lender from such Lender's obligations hereunder or under any ~~assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower~~other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.10, ~~1.15~~1.11, ~~1.16~~ 8.3 and ~~9.8~~9.1, ~~Borrower acknowledges~~ Borrowers acknowledge and ~~agrees~~ agree that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "Lender"; provided that any such participant shall not be entitled to receive any greater payment under Section 1.10 than the Lender granting such participation would have been entitled to receive with respect to the portion of its Commitment and Loans so participated. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor~~ or any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 8.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party shall assist each Lender permitted to sell assignments or participations under this Section 8.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the prompt preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants, all on a timetable established by Agent in its sole discretion. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 5.5. Agent shall maintain, on behalf of Borrowers, in its offices located at 335 Madison Avenue, 12th Floor, New York, New York 10017, a "register" for reco▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇ach Lender. The entries in such register shall be presumptive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrowers, Agent and each Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Lender for all purposes of this Agreement. The register described herein shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 9.13.

Appears in 1 contract

Sources: Credit Agreement (Osullivan Industries Holdings Inc)

Assignment and Participations. (a) ~~Subject~~ The Loan Parties signatory hereto consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Administrative Agent and Borrower Representative (~~which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and~~which, ~~so long as no Event~~ in the case of ~~Default has occurred and is then continuing~~Borrower Representative, ~~Borrower (which consent~~ shall not be unreasonably withheld or delayed); provided, however, that ~~any assignment to Black Diamond Capital Management or any of its Affiliates shall require the~~ no consent of Borrower ~~so long as no~~ Representative shall be required if an Event of Default ~~pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has~~ shall have occurred and ~~is then continuing),~~ be continuing and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit ~~9.1(a)~~ H and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Administrative Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Administrative Agent that it is ~~purchasing~~ making the ~~applicable Loans to be assigned to it~~ purchase for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000, be of the same Pro Rata Share of Facility A Commitment and Facility B Commitment and, after giving effect to any such partial assignment, the ~~assignee~~ assigning Lender shall have retained Commitments and Loans in an amount at least equal to $~~5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000~~5,000,000; and (iv) include a payment to Administrative Agent of an assignment fee of $~~3,500~~3,500 by the assigning Lender. The failure of Borrower Representative to consent to an assignment to a Person that is or is an Affiliate of a Person that is engaged in the telecommunications industry and is a competitor of or supplier to any Loan Party shall not be deemed unreasonable. In the case of an assignment by a Lender under this Section ~~9.1~~3.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender." In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event any Lender assigns or ~~sale contemplated by~~ otherwise transfers all or any part of the Obligations, any such Lender shall so notify Borrower Representative and Borrowers shall, upon the request of Administrative Agent or such Lender, execute a new Note in exchange for each Note, if any, or portion thereof being assigned. Notwithstanding the foregoing provisions of this Section ~~9.1(a~~3.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, however, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~2.15, ~~1.15~~2.17, ~~1.16~~ 2.18 and ~~9.8~~3.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "Lender". ." Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other Credit~~ or Loan Party shall have any obligation or duty to any participant. Neither Administrative Agent nor any Lender (other than ~~the~~ Lender selling a participation) shall have any duty to any participant and may continue to deal solely with ~~the~~ Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 3.1, no Lender shall, as between any Loan Party and that Lender, or Administrative Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Loan Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 3.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Administrative Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Loan Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of such Loan Parties and its affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by such Loan Party shall only be certified by such Loan Party as having been prepared by it in compliance with the representations contained in Section 5.10. (e) A Lender may furnish any information concerning Loan Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants). Each Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 12.16. (f) So long as no Event of Default shall have occurred and be continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 2.18(a), increased costs under Section 2.18(b), an inability to fund LIBOR Loans under Section 2.18(c), or withholding taxes in accordance with Section 2.17(a).

Appears in 1 contract

Sources: Loan and Security Agreement (Us Lec Corp)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to ~~a Qualified Assignee~~ an assignee of, or sell participations in, at any time or times, the Loan Documents, the Loans, the Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans or interests therein to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed; provided that no such consent shall be required for an assignment to a Qualified Assignee. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans or ~~sale contemplated by~~ purchase participation interests therein hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of its interest in the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge its interest in the ~~consummation of which does not require consent of Borrower~~Obligations and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign its interest in the Obligations and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of Agent’s Lien on all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender"”. Except as set forth in the preceding ~~sentence, neither Borrower nor any other~~ sentence no Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party shall certify the correctness, completeness and accuracy of all descriptions of the Sotheby Entities and their respective affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that the Projections shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.4(b). (e) Any Lender may furnish any information concerning Sotheby Entities in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitment to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrowers, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and Agent and without paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder. (h) In the case of an assignment by a Non-Sterling Lender to a Sterling Lender of any interest in the Revolving Loan Outstandings, such Sterling Lender shall purchase the portion of the Revolving Loan outstanding to the Fronting Lender to the extent of the participation interest therein of such Non-Sterling Lender making such assignment for a purchase price, in Sterling, equal to such outstanding amount, and the Fronting Lender shall pay the Dollar Equivalent as of such date of such amount to such Non-Sterling Lender in payment of such participation interest. In the case of an assignment by a Sterling Lender to a Non-Sterling Lender of any interest in the Revolving Loan Outstandings, the Fronting Lender shall purchase the portion of the Revolving Loan outstanding to such Sterling Lender which is subject to such assignment, and such Non-Sterling Lender shall purchase an undivided participation interest in the Revolving Loan Outstandings from the Fronting Lender for a purchase price in Dollars equal to the Dollar Equivalent as of such date of such portion assigned. (i) Any Non-Sterling Lender may become a Sterling Lender hereunder upon delivery of notice to Agent, the Fronting Lender and the Borrower Representative. Upon delivery of such notice by such Lender, without any further action whatsoever (i) such Lender shall be deemed to have purchased from the Fronting Lender a portion of the Revolving Loan Outstandings held by the Fronting Lender equal to such Lender’s participation interests therein, (ii) the Fronting Lender shall be deemed to have repaid such participation interests to such Lender and shall have no further obligations to such Lender hereunder, (iii) such Lender shall constitute a Sterling Lender for all purposes hereunder, including, without limitation, the Commitment to make Sterling Revolving Credit Advances pursuant to Section 1.1(a)(i) and (iv) the Fronted Percentage, and the obligation of the Fronting Lender to make Sterling Revolving Credit Advances pursuant to Section 1.1(a)(i), shall be reduced accordingly.

Appears in 1 contract

Sources: Credit Agreement (Sothebys)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~8.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment and Acceptance Agreement"”) substantially in the form attached hereto as Exhibit ~~9.1(a)~~ B and otherwise in form and substance reasonably satisfactory to, and acknowledged by, the Administrative Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and the Administrative Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 2,000,000 in the case of Revolving Credit Commitments and, with respect to Term Loans, $1,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~2,000,000 in the case of Revolving Credit Commitments and, with respect to Term Loans, $1,000,000; ~~and~~ (iv) include a payment to the Administrative Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed. In the case of an assignment by a Lender under this Section ~~9.1~~8.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of the Borrowers to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Applicable Percentage of the applicable Commitment. In the event the Administrative Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, the Administrative Agent or any such Lender shall so notify the Borrower Representative and the Borrowers shall, upon the request of the Administrative Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section ~~9.1(a~~8.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ the Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the ~~Collateral~~ Security Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~2.11, ~~1.15~~2.13, ~~1.16~~ 2.17 and ~~9.8~~8.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ the Borrowers to the participant and the participant shall be considered to be a "“Lender"”; provided that in no event shall participant be entitled to greater compensation than the Lender who sold such participation to such participant. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other Credit~~ or Loan Party shall have any obligation or duty to any participant. Neither the Administrative Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 8.1, no Lender shall, as between the Borrowers and that Lender, or Administrative Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Any Lender may furnish any information concerning Loan Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 9.15. (e) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 2.11(b), increased costs under Section 2.11(a), an inability to fund Eurodollar Loans under Section 2.12(a), or withholding taxes in accordance with Section 2.17(a). (f) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Administrative Agent and the Borrowers, the option to provide to the Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, the Borrowers and Administrative Agent and without paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrowers and Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 8.1(f) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 1 contract

Sources: Credit Agreement (Centerplate, Inc.)

Assignment and Participations. (a) ~~Subject~~ Each Obligor consents to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or ~~times~~times pursuant hereto, any of the Loan Documents, ~~Loans, Letter of~~ any Revolving Credit ~~Obligations and any~~ Loan Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Agent and Holdings (neither of which ~~consent~~ consents shall ~~not~~ be unreasonably withheld or delayed and which consent of Holdings shall not be required during the existence and continuance of an Event of Default or with respect to Persons designated on a ~~Qualified Assignee~~pre-approved list delivered to Holdings on or prior to the Closing Date); (ii) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require ~~the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and~~ the execution of an assignment agreement (an "~~Assignment Agreement~~ASSIGNMENT AGREEMENT") ~~substantially in the form attached hereto as Exhibit 9.1(a) and otherwise~~ in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (iiiii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable ~~Loans~~ portion of the Revolving Credit Loan to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (~~iii~~iv) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the ~~assignee~~ assigning Lender shall have ~~Commitments~~ retained a Revolving Credit Loan Commitment in an amount at least equal to $~~5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000~~5,000,000; and (ivv) include a payment by the assigning Lender or the assignee Lender to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this ~~Section~~ SECTION 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Revolving Credit Loan Commitment or assigned portion thereof from and after the date of such assignment. Each Obligor hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Obligors to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Revolving Credit Advances hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Revolving Credit Loan Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of a Revolving Credit Note, Agent or any such Lender shall so notify Holdings or Borrowers and Borrowers shall, upon the request of Agent or such Lender to Holdings or Borrowers, execute new Revolving Credit Notes in exchange for the Revolving Credit Notes being assigned. Notwithstanding the foregoing provisions of this ~~Section 9.1(a~~SECTION 9.1(A), any Lender may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the ~~consummation of which does not require consent of Borrower~~other Loan Documents to a Federal Reserve Bank; PROVIDED, HOWEVER, that no such pledge or assignment shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its ~~Commitments~~ Revolving Credit Loan Commitment shall be made with the understanding that all amounts payable by ~~Borrower~~ Obligors hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, ~~any Loan in which such holder participates~~the Revolving Credit Loan, (ii) any extension of the scheduled amortization of the principal amount of ~~any~~ the Revolving Credit Loan ~~in which such holder participates~~ or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of ~~Sections~~ SECTIONS 1.12, 1.13, ~~1.15~~1.14, ~~1.16~~ 1.15 and 9.8, ~~Borrower~~ each Obligor acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Obligors to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, ~~neither Borrower nor any other Credit Party~~ no Obligor shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 1 contract

Sources: Credit Agreement (Weider Nutrition International Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, ~~Loans, Letter of Credit Obligations~~ Loans and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) (A) except for an assignment to an Affiliate (as defined in clause (a) and/or (b) of the definition of "Affiliate" in Annex A) of the assigning Lender, require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) ~~and, so long as no Event of Default has occurred~~ and ~~is then continuing, Borrower~~ (~~which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall~~ B) require ~~the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and~~ the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on ~~such~~ the assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 2,500,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) except for an assignment to an Affiliate (as defined in clause (a) and/or (b) of the definition of "Affiliate" in Annex A) of the assigning Lender, include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to document any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be reasonably requested. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) Any entity that purchases a participation in the Loans pursuant to Section 9.2(b) shall not be entitled to receive any greater payment under Section 1.16(a) with respect to capital adequacy or similar requirements, Section 1.16(b) with respect to increased costs, Section 1.16(c) with respect to the inability to make LIBOR Loans or Section 1.15(a) with respect to withholding taxes, than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, unless the sale of the participation to such participant is made with the Borrower’s prior written consent or unless such sale is made while an Event of Default has occurred and is continuing. (g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender"), may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing by the Granting Lender to Agent and Borrower, the option to provide to Borrower all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrower and Agent and assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrower and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder. (h) Nothing contained in this Section 9 shall require the consent of any party for a Secured Swap Provider to assign any of its rights in respect of any Secured Rate Contract.

Appears in 1 contract

Sources: Credit Agreement (Otelco Inc.)

Assignment and Participations. (a) ~~Subject~~ The Credit Parties signatory hereto consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Agent (which ~~consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent~~ shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "Assignment Agreement") " substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (ii) require the consent of Borrower which consent shall not be unreasonably withheld or delayed; provided that no such consent shall be required so long as any Default or Event of Default has occurred and is continuing; (iii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (~~iii~~iv) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (ivv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, however, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 1 contract

Sources: Credit Agreement (Gibson Greetings Inc)

Appears in 1 contract

Sources: Credit Agreement (Allied Holdings Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and ~~any Commitment~~ Commitments or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder; provided that any such assignment shall be of a constant share of the Loans and Commitments. Any assignment by a Lender shall: (i) require the consent of the Applicable Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, the Applicable Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and the Applicable Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to the US Dollar Equivalent of $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to the US Dollar Equivalent of $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to the Applicable Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has occurred and is continuing, require the consent of (i) Borrower Representative with respect to assignments of Loans, Letter of Credit Obligations and Commitment to US Borrower and/or Term Borrower; or (ii) UK Borrower with respect to assignments of Loans and Commitments to UK Borrower, which consent, in each case, shall not be unreasonably withheld, conditioned or delayed. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of the Applicable Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event any Agent or ~~sale contemplated~~ any Lender assigns or otherwise transfers all or any part of the Obligations held by it, such Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of such Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral securing the Loan in which such holder participates (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.12, ~~1.15~~1.14, ~~1.16~~ 1.15 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender",” provided, however, that a Borrower’s obligations and liabilities hereunder, including under Sections 1.12, 1.14, 1.15 and 9.8 shall not be increased due to any such participation. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither any Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or any Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be reasonably requested and, if requested by the Applicable Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.4(c). (e) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agents and Borrowers, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) such SPC shall not be entitled to any payments under Sections 1.14 or 1.15 hereof, or any indemnification payment, in excess of the payment that that would have been payable to the Granting Lender. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and Agents and without paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrowers and Agents) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and provided that such assignee shall not be entitled to any payments under Sections 1.14 or 1.15 hereof, or any indemnification payment hereunder, and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(f) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder. (g) Notwithstanding anything to the contrary contained herein, so long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.15(a), increased costs under Section 1.15(b) or (d), an inability to fund LIBOR Loans under Section 1.15(c), or withholding taxes in accordance with Section 1.14.

Appears in 1 contract

Sources: Credit Agreement (Westaff Inc)

Assignment and Participations. (a) ~~Subject to the terms of this Section 9.1, any~~ Any Lender or Lenders may ~~make an assignment to a Qualified Assignee of, or~~ assign and/or sell participations in, at any time or times, the Loan Documents, ~~Loans, Letter of Credit Obligations~~ Loans and any Commitment or of any portion thereof or interest therein, including any such Lender's ’s rights, title, interests, remedies, powers or duties thereunder~~. Any assignment~~ , whether evidenced by a ~~Lender shall: (i) require~~ writing or not; provided, however, that absent the occurrence and continuation of an Event of Default, such assignment or participation shall be subject to the consent of ~~Agent (which~~ the Borrower, such consent ~~shall~~ not to be unreasonably ~~withheld~~ withheld, delayed or ~~delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed~~conditioned; ~~provided~~provided further, that ~~any assignment to Black Diamond Capital Management or any of its Affiliates~~ the Borrower shall ~~require the~~ have no such consent ~~of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of~~ rights in connection with an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect or participation to any ~~such partial assignment, the assignee~~ Lender ~~shall have Commitments in an amount at least equal~~ or to ~~$5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) include a payment to Agent~~ any Affiliate or Related Fund of ~~an assignment fee of $3,500~~any Lender. In the case of an assignment by a Lender under this Section ~~9.1~~10.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Administrative Agent or ~~sale contemplated by this Section 9.1(a)~~any Lender assigns or otherwise transfers all or any part of a Loan, Administrative Agent or any such Lender shall so notify Borrower and Borrower shall, upon the ~~consummation~~ request of ~~which does not require consent of Borrower~~Administrative Agent or such Lender, execute new Notes in exchange for the Notes being assigned. (b) ~~Any participation by a Lender of all or~~ With respect to any ~~part of its Commitments shall be made with~~ participation, the ~~understanding~~ parties hereto acknowledge and agree that all amounts payable by Borrower hereunder shall be determined as if ~~that~~ the Lender selling such participation had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~2.13, ~~1.15~~2.15, ~~1.16~~ 2.16 and ~~9.8~~10.8 , Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "“Lender"”. Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other ~~Credit~~ Loan Party shall have any obligation or duty to any participant. Neither the Administrative Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 10.1, no Lender shall, as between Borrower and that Lender, or Administrative Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Loan Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 10.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Administrative Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Loan Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Loan Parties and their affairs contained in any selling materials provided by them and all other information provided by them and included in such materials. (e) A Lender may furnish any information concerning Loan Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants). (f) Notwithstanding anything to the contrary in this Agreement, no Loan Party shall have any obligation to reimburse Administrative Agent or any Lender for any costs or expenses incurred in connection with any such assignment or participation.

Appears in 1 contract

Sources: Credit Agreement (Princeton Review Inc)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~10.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, to any Person (other than a Person which is itself directly engaged in the same business as, and a direct competitor of, the Coffeyville Refinery and Coffeyville Nitrogen Plant), at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) in the case of Revolving Loans and Revolving Loan Commitments only, require the consent of ~~Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and~~the Agents, ~~so long as no Event of Default has occurred~~ and ~~is then continuing, Borrower~~ L/C Bank (which consent shall not be unreasonably withheld or delayed); ~~provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall~~ (ii) require the ~~consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred~~ execution and ~~is then continuing), and the execution~~ delivery of an assignment agreement (an "Assignment Agreement") to be (A) electronically executed and delivered to the Agent via an electronic settlement system then acceptable to the applicable Agent, which shall initially be the settlement system of ClearPar, LLC, or (B) manually executed and delivered Assignment Agreement substantially in the form attached hereto as Exhibit ~~9.1(a)~~ 10.1(a)-A or Exhibit 10.1(a)-B, as applicable and otherwise in form and substance reasonably satisfactory to, and acknowledged by, ~~Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing~~ the applicable ~~Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof~~Agent; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 1,000,000 and the assigning Lender shall have retained ~~Commitments~~ Commitments, if any, in an amount at least equal to $~~2,500,000~~1,000,000; ~~and~~ (iv) include a payment to (A) Administrative Agent of an assignment fee of $3,500 and (B) to the Term Agent, in the case of manually executed Assignment Agreements only of an assignment fee of $3,500; and (v) in respect of Revolving Loans, so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed. Administrative Agent, acting for this purpose as an agent of the Borrowers, shall maintain at one of its offices in the City of New York a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Revolving Lenders, and the Revolving Loan Commitment of, and principal amount of the Revolving Loans owing to, each Revolving Lender pursuant to the terms hereof from time to time (the "Revolving Register"). Term Agent, acting for this purpose as an agent of the Borrowers, shall maintain at one of its offices in the City of New York a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Term Lenders, and the Term Loan Commitment of, and principal amount of the Term Loans owing to, each Term Lender pursuant to the terms hereof from time to time (the "Term Register"). The entries in the Registers shall be conclusive absent manifest error and the Borrowers, Administrative Agent, Term Agent, L/C Bank and the Lenders may treat each person whose name is recorded in the Registers pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Registers shall be available for inspection by the Borrowers, L/C Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice. Upon its receipt of a duly completed Assignment Agreement executed by an assigning Lender and an assignee, and the written consent of Term Agent or Administrative Agent and L/C Bank, if required, Administrative Agent or Term Agent, as applicable, shall (i) accept such Assignment Agreement and (ii) record the information contained therein in the applicable register. No assignment shall be effective unless it has been recorded in the Registers as provided in this Section 10.1(a). In the case of an assignment by a Lender under this Section ~~9.1~~10.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Administrative Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Administrative Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Administrative Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section ~~9.1(a~~10.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~2.11, ~~1.15~~2.13, ~~1.16~~ 2.14 and 9.8, each Borrower acknowledges and agrees that ~~a participation shall give rise to a direct obligation of Borrower to the participant and the~~ each participant shall be ~~considered~~ entitled to the benefits of Sections 2.11, 2.13, 2.14 and 10.8 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section 10.1; provided, (i) a participant shall not be entitled to receive any greater payment under Section 2.13 or 2.14 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, unless the sale of the participation to such participant is made with Borrower Representative's prior written consent and (ii) a participant that would be a "Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.13 unless the Borrower Representative is notified of the participation sold to such participant and such participant agrees, for the benefit of the Borrowers, to comply with Section 2.13 as though it were a Lender". Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 10.1, no Lender shall, as between Borrower and that Lender, or either Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 10.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by any Agent, conducting facility tours and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 4.4(c). (e) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided, that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 12.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 2.14(a), increased costs under Section 2.14(b), or an inability to fund LIBOR Loans under Section 2.14(c). (g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender"), may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing by the Granting Lender to Administrative Agent and Borrowers, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided, that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and the Agents and without paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrowers and the Agents) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 10.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 1 contract

Sources: Credit Agreement (Coffeyville Resources, Inc.)

Assignment and Participations. (a) ~~Subject~~ The Loan Parties signatory hereto consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, ~~Loans, Letter of Credit Obligations~~ Loans and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Agent ~~(which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee)~~ and, ~~so long as no Event~~ in the case of ~~Default has occurred and is then continuing~~an assignment of Revolving Loans or Revolving Credit Commitments, ~~Borrower~~ the Revolving Credit Agent (neither of which ~~consent~~ consents shall ~~not~~ be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "Assignment Agreement") substantially -------------------- in the form attached hereto as Exhibit ~~9.1(a)~~ D and otherwise in form and substance ~~reasonably~~ --------- satisfactory to, and acknowledged by, Agent and, in the case of an assignment of Revolving Loans or Revolving Credit Commitments, the Revolving Credit Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that (x) it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof, and (y) that it, or its parent, has assets in excess of $100,000,000; (iii) if a partial assignment to a Person other than a Lender, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section ~~9.1~~10.1, the assignee shall have, to the extent of such assignment, the ------------ same rights, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower. (b) Any participation by it would if it were a Lender ~~of all or any part~~ hereunder. The assigning Lender shall be relieved of its ~~Commitments shall be made with the understanding that all amounts payable by Borrower~~ obligations hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect ~~to, any Loan in which~~ to its Commitments or assigned portion thereof from and after the date of such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents)assignment. ~~Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8,~~ Borrower hereby acknowledges and agrees that ~~a participation shall~~ any assignment will give rise to a direct obligation of Borrower to the ~~participant~~ assignee and that the ~~participant~~ assignee shall be considered to be a "Lender". ~~Except~~ In all instances, each Lender's obligation to make Advances hereunder shall be several and not joint and shall be limited to such Lender's Commitments. In the event any Agent or Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute and deliver to Agent or such Lender as applicable, new Notes A, Notes B or Revolving Notes, in exchange for such documents evidencing the Obligations being assigned or transferred. Notwithstanding the foregoing provisions of this Section 10.1(a), any Lender may at any time pledge --------------- the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, however, that no such pledge -------- ------- to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. Notwithstanding anything herein to the contrary, each Lender now or hereafter a signatory to this Agreement hereby grants to GE Capital a right of first refusal with respect to such Lender's right, title and interest in the Loan Documents, the Loans and any Commitment and hereby agrees that no assignment of all or any portion of such Lender's right, title and interest in the Loan Documents, the Loans and any Commitment shall be valid unless such Lender complies with this right of first refusal. Therefore, each Lender hereby agrees to give GE Capital prior written notice of such Lender's intent to assign all or a portion of such Lender's right, title and interest in the Loan Documents, the Loans and any Commitment (which notice shall include the proposed assignee, the purchase price, and the portion of such Lender's interest to be assigned), whereupon for the ten Business Day period beginning the day after receipt of such notice, GE Capital shall have the right to purchase such described interest of such Lender upon the same terms as those described in such notice. If GE Capital purchases such an interest, such interest shall be assigned to GE Capital pursuant to and on the terms set forth in the Assignment Agreement and the preceding ~~sentence, neither Borrower nor any other Credit Party~~ provisions of this Section 10.1(a) shall ~~have any obligation or duty to any participant. Neither Agent nor any Lender (~~be --------------- applicable other than that no assignment fee shall be required to be paid to Agent. If GE Capital does not purchase such an interest within such ten Business Day period, such Lender shall be entitled to so assign such an interest in the ~~Lender selling a participation) shall have any duty~~ manner and pursuant to ~~any participant and may continue to deal solely~~ the provisions specified in such notice, provided that such assignment otherwise complies with the ~~Lender selling a participation as if no such sale had occurred~~provisions of this Agreement.

Appears in 1 contract

Sources: Loan and Security Agreement (Premier Graphics Inc)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~8.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit ~~9.1(a)~~ 8.1 and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) except with respect to any assignment by a Lender to an Affiliate of such Lender, after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) ~~include~~ require a payment to Agent of an assignment fee of $3,500, (v) with respect to any partial assignment, be made as an assignment of a proportionate part of all the assigning Lender’s rights and Obligations under this Agreement with respect to the Loan or Commitment assigned (i.e., pro rata with respect to the Domestic Revolving Loans and the Alternative Currency Revolving Advances) and (vi) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed. Notwithstanding the above, Agent may in its sole and absolute discretion permit any assignment by a Lender to a Person or Persons that are not Qualified Assignees, subject to Borrower Representative’s consent rights as set forth above. In the case of an assignment by a Lender that has become effective under this Section ~~9.1~~8.1, (i) the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ all other Lenders hereunder and (ii) the assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof and the Loans, Letter of Credit Obligations and other interests assigned by it from and after the effective date of such assignment. Borrowers hereby acknowledge and agree that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender.” In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 8.1(a), (a) ~~have been complied with. Agent hereby agrees~~ any Lender may at any time pledge the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to ~~provide Borrower with commercially reasonable~~ a Federal Reserve Bank, (b) any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor or pledge such Obligations and rights to a trustee for the benefit of its investors and (c) any Lender may assign the Obligations to an Affiliate of such Lender or to a Person that is a Lender prior ~~written notice~~ to the date of ~~any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower~~such assignment. (bi) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (ix) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (iiy) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (~~iii~~z) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.8, ~~1.15~~1.9, ~~1.16~~ 8.3 and ~~9.8~~9.1, ~~Borrower acknowledges~~ Borrowers acknowledge and ~~agrees~~ agree that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender". .” Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor~~ or any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (ii) A Lender may not grant a participation to a Person who is (x) not a “United States person” (within the meaning of IRC Section 7701(a)(30) unless such Person is exempt from United States withholding tax as of the date of such participation and provides a Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY, or (y) not a Qualifying Lender. (iii) Where a Lender proposes to grant a participation to a Person who is a Qualifying Lender (x) that Person must provide evidence of its status as a Qualifying Lender to the reasonable satisfaction of the Lender and the Agent and (y) where the Qualifying Lender is a Treaty Lender, agree to be bound by the provisions of Section 1.9(g). (c) Except as expressly provided in this Section 8.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party shall assist each Lender permitted to sell assignments or participations under this Section 8.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the prompt preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants, all on a timetable reasonably established by Agent in its sole discretion. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.5. Agent shall maintain, on behalf of Borrowers, in its offices located at New York, New York a “register” for recording the name, address, commitment and Loans owing to each Lender. The entries in such register shall be conclusive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrowers, Agent and each Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Lender for all purposes of this Agreement. The register described herein shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 9.13.

Appears in 1 contract

Sources: Credit Agreement (Vertis Inc)

Assignment and Participations. (a) ~~Subject~~ The Credit Parties signatory hereto consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Administrative Agent ~~(which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee)~~ and, so long as no Default or Event of Default ~~has~~ shall have occurred and ~~is then~~ be continuing, Borrower Representative (which ~~consent~~ shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "~~Assignment Agreement~~ASSIGNMENT AGREEMENT") substantially in the ~~form~~ from attached hereto as ~~Exhibit 9.1(a~~EXHIBIT 9.1(A) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Administrative Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Administrative Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Administrative Agent of an assignment fee of $3,500; PROVIDED that such assignment fee shall not be payable in the event of any internal assignment by any Lender to any Affiliate of such Lender, PROVIDED FURTHER, THAT the assigning Lender shall reimburse the Administrative Agent for its reasonable fees and expenses incurred in connection with any such assignment. In the case of an assignment by a Lender under this ~~Section~~ SECTION 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Administrative Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Administrative Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Administrative Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this ~~Section 9.1(a~~SECTION 9.1(A), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; PROVIDED, HOWEVER, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of ~~Sections 1.13~~SECTIONS 1.14, ~~1.15~~1.16, ~~1.16~~ 1.17 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Administrative Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 1 contract

Sources: Credit Agreement (Hi Rise Recycling Systems Inc)

Assignment and Participations. (a) ~~Subject~~ The Credit Parties signatory hereto consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Agent and so long as no Event of Default has occurred and is continuing, Borrower Representative (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the ~~form~~ from attached hereto as Exhibit 9.1(a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly ~~affecting~~ affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 1 contract

Sources: Credit Agreement (Harvard Industries Inc)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~8.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") " substantially in the form attached hereto as Exhibit ~~9.1(a)~~ 8.1 and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) ~~include~~ require a payment to Agent of an assignment fee of $3,500. Notwithstanding the above, Agent may in its sole and absolute discretion permit any assignment by a Lender to a Person or Persons that are not Qualified Assignees. In the case of an assignment by a Lender under this Section ~~9.1~~8.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ all other Lenders hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrowers hereby acknowledge and agree that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender." In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 8.1(a), (a) ~~have been complied with. Agent hereby agrees~~ any Lender may at any time pledge the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to ~~provide Borrower with commercially reasonable~~ a Federal Reserve Bank, (b) any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor or pledge such Obligations and rights to trustee for the benefit of its investors and (c) any Lender may assign the Obligations to an Affiliate of such Lender or to a Person that is a Lender prior ~~written notice~~ to the date of ~~any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower~~such assignment. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.10, ~~1.15~~1.11, ~~1.16~~ 8.3 and ~~9.8~~9.1, ~~Borrower acknowledges~~ Borrowers acknowledge and ~~agrees~~ agree that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "Lender". ." Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor~~ or any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 8.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party shall assist each Lender permitted to sell assignments or participations under this Section 8.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the prompt preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants, all on a timetable established by Agent in its sole discretion. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 5.5. Agent shall maintain, on behalf of Borrowers, in its offices located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ a "register" for recording the name, address, commitment and Loans owing to each Lender. The entries in such register shall be presumptive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrowers, Agent and each Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Lender for all purposes of this Agreement. The register described herein shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 9.13. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be eligible to demand payment in respect of capital adequacy or similar requirements under Section 1.10(a), to demand increased costs or be entitled not to fund LIBOR Loans under Section 1.10(b), or would subject Credit Parties to increased costs in accordance with Section 1.11.

Appears in 1 contract

Sources: Credit Agreement (Penhall International Corp)

Assignment and Participations. (a) ~~Subject~~ The Credit Parties consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations ~~and~~ or any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") " substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment by the assigning Lender to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower. (b) Any participation by a Lender of all ~~or any part~~ other Lenders hereunder. The assigning Lender shall be relieved of its ~~Commitments shall be made with the understanding that all amounts payable by Borrower~~ obligations hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect ~~to, any Loan in which~~ to its Commitments or assigned portion thereof from and after the date of such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents)assignment. ~~Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8,~~ Borrower hereby acknowledges and agrees that ~~a participation~~ any assignment shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.of

Appears in 1 contract

Sources: Credit Agreement (Styling Technology Corp)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Revolving Loan Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Revolving Loan Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Revolving Loan Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $~~3,500~~3,500 and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed; provided that no such consent shall be required for an assignment to a Qualified Assignee. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Revolving Loan Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Revolving Loan Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Revolving Loan Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender"”. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Revolving Loan Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrowers, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Revolving Loan Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and Agent and assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder. (h) Nothing contained in this Section 9 shall require the consent of any party for GE Capital to assign any of its rights in respect of any Swap Related Reimbursement Obligation.

Appears in 1 contract

Sources: Credit Agreement (Huttig Building Products Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Asta Funding Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement") ” substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 2,500,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~2,5000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $~~3,500~~3,500 and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower, which shall not be unreasonably withheld or delayed; provided that no such consent shall be required for an assignment to a Qualified Assignee. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "“Lender"”. Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrower, the option to provide to Borrower all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrower and Agent and assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrower and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder. (h) Nothing contained in this Section 9 shall require the consent of any party for GE Capital to assign any of its rights in respect of any Swap Related Reimbursement Obligation.

Appears in 1 contract

Sources: Credit Agreement (Comverge, Inc.)

Assignment and Participations. (a) ~~Subject~~ The Credit Parties signatory hereto consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, ~~Loans, Letter of Credit Obligations~~ Loans and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Agent (which ~~consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent~~ shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "Assignment Agreement") " substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, however, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.amount

Appears in 1 contract

Sources: Credit Agreement (United Shipping & Technology Inc)

Assignment and Participations. ~~(a) Subject to the terms of~~ GE Capital may assign its rights and delegate its obligations as a Lender under this ~~Section 9.1~~Agreement and, ~~any Lender~~ further, may ~~make an assignment to a Qualified Assignee of~~assign, or sell participations in, at all or any ~~time or times~~part of its Revolving Credit Advances, ~~the Loan Documents, Loans,~~ its Letter of Credit ~~Obligations and any Commitment~~ Obligations, its Commitments or any ~~portion thereof~~ other interest herein or ~~interest therein~~in its Amended Revolving Credit Note to an Affiliate or to any another Person. Unless Agent shall have otherwise agreed in writing, ~~including~~ no other Lender shall assign any ~~Lender's rights, title, interests, remedies, powers~~ of its rights or ~~duties thereunder. Any assignment by a Lender shall: (i) require the consent~~ delegate any of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management its obligations under this Agreement or any of the other Loan Documents or assign, or sell any participation in, all or any part of its ~~Affiliates shall require the consent~~ Revolving Credit Advances, its Letter of ~~Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i)~~Credit Obligations, ~~8.1(a)(ii), 8.1(h)~~ its Commitments or ~~8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially~~ any other interest herein or in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its ~~own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect~~ Amended Revolving Credit Note to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) include a payment to Agent of an assignment fee of $3,500Affiliate or other Person. In the case of an assignment by ~~a Lender~~ GE Capital under this Section 9.1, (or in the event, if any, that Agent shall so agree in writing, an assignment by another Lender), the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender." In all instances, each Lender's liability to make Revolving Credit Advances or ~~sale contemplated by this Section 9.1(a)~~incur Letter of Credit Obligations hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share. GE Capital may (or, in the ~~consummation of which does not require consent of Borrower. (b~~event, if any, that Agent shall so agree in writing, another Lender may) ~~Any participation by a Lender of~~ sell participations in all or any part of ~~its Commitments shall be made with the understanding~~ any Revolving Credit Advances made, or any Letter of Credit Obligations incurred, by it as a Lender to an Affiliate or any other Person; provided that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such ~~participation,~~ participation and ~~that~~ the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except ~~actions~~ action directly affecting (ia) any reduction in the principal ~~amount of~~amount, or interest rate or ~~Fees~~ fees payable with respect ~~to,~~ to any ~~Loan~~ Revolving Credit Advances in which such holder participates, ; (iib) any extension of the final scheduled ~~amortization~~ maturity date of the principal amount of ~~any Loan~~ the Revolving Credit Advances in which such holder ~~participates or the final maturity date thereof,~~ participates; and (~~iii~~c) any release of ~~all or substantially all~~ any Collateral with a value in excess of $2,500,000 in the ~~Collateral~~ aggregate (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). ~~Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8,~~ Borrower hereby acknowledges and agrees that a any participation ~~shall~~ will give rise to a direct obligation of Borrower to the participant and the participant shall for purposes of Sections 1.15, 1.17 and 9.3 be considered to be a "Lender"." Unless Agent shall have otherwise agreed in writing, no Lender, other than GE Capital, shall sell any participation in all or any part of any Revolving Credit Advances made, or any Letter of Credit Obligations incurred, by it to any Affiliate or other Person. Except as ~~set forth~~ otherwise provided in this Section 9.1 no Lender shall, as between Borrower and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Revolving Credit Advances, the Amended Revolving Credit Notes or other Obligations owed to such Lender. Any Lender permitted to sell assignments and participations under this Section 9.1 may furnish any information concerning Borrower and its Subsidiaries in the ~~preceding sentence, neither~~ possession of that Lender from time to time to assignees and participants (including prospective assignees and participants). Borrower ~~nor any other Credit Party~~ shall ~~have any obligation or duty to any participant. Neither Agent nor~~ assist any Lender permitted to sell assignments or participations under this Section 9.1 in whatever manner necessary in order to enable or effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of relevant management in meetings with, potential assignees or participants. Borrower shall certify the correctness, completeness and accuracy of all descriptions of Borrower and its affairs contained in any selling materials and all information provided by it and included in such materials. No information provided to potential co-Lenders or participants shall be provided unless and until such potential co-Lenders or participants have signed a confidentiality agreement substantially in the form provided to Borrower and used by Agent prior to the Closing Date (~~other than~~ as defined in the ~~Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred~~Prior Credit Agreement).

Appears in 1 contract

Sources: Credit Agreement (Zenith Electronics Corp)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500, except no assignment fee is payable for assignments to an Affiliate of such assigning Lender. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender"”; provided, however, that a participant shall not be entitled to receive any greater payment under Sections 1.13, 1.15 or 1.16 than the Lender from which such participant acquired its participation would be entitled to receive in respect of the amount of the participation. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.4(b). (e) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a) to an extent greater than that applicable to the assigning or selling Lender. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrowers, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and Agent and without paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder. (h) Nothing contained in this Section 9 shall require the consent of any party for GE Capital to assign any of its rights in respect of any Swap Related Reimbursement Obligation.

Appears in 1 contract

Sources: Credit Agreement (Standard Motor Products Inc)

Appears in 1 contract

Sources: Loan Agreement (Asta Funding Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may upon notice to Borrowers make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least ~~equal to $5,000,000~~ US$2,500,000 and the assigning Lender shall have retained Commitments in an amount at least ~~equal to $~~US$2,500,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $US$3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ all other Lenders hereunder; provided that so long as no Event of Default has occurred and is continuing (ai) ~~have been complied with~~in the case of assignments by a Cdn. ~~Agent hereby agrees to provide Borrower with commercially reasonable prior written notice~~ Lender, if such assignee is a non-resident of Canada for purposes of Part XIII of the ITA in respect of any payment that may be made by Lower Lakes, such assignee shall not be entitled to any gross up payment or indemnification pursuant to Section 1.15 from Lower Lakes on account of any withholding taxes exigible on such payment, and (ii) in the case of an assignment by a US Revolving Lender or ~~sale contemplated~~ a US Term Lender, if such assignee is a non-resident of the United States for purposes of the Revenue Code in respect of any payment that may be made by ~~this~~ any US Borrower, such assignee shall not be entitled to any gross-up payment or indemnification pursuant to Section ~~9.1(a~~1.15 from such US Borrower on account of any withholding taxes eligible on such payment. So long as no Event of Default has occurred and is continuing, without the Borrowers' consent (acting reasonably), no Lender may assign its Commitment to any person in the ~~consummation~~ business of ~~which does~~ owning or operating ships transporting bulk cargo on the Great Lakes or any subsidiary of such a person. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees that any assignment shall give rise to a direct obligation of such Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not ~~require consent~~ joint and shall be limited to such Lender's Pro Rata Share of ~~Borrower~~the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify the applicable Borrower and such Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ the Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). ~~Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8,~~ No Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any or other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between any Borrower and such Lender, or Agent and such Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by a Borrower shall only be certified by such Borrower as having been prepared by such Borrower in compliance with the representations contained in Section 3.4(c). (e) A Lender may furnish any information concerning the Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants) and to the other Secured Parties; provided, that such Lender shall obtain from such assignees or participants or such other Secured Parties confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing by the Granting Lender to Agent and the Borrowers, the option to provide to a Borrower all or any part of any Loans that such Granting Lender would otherwise be obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, the Borrowers and Agent assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(f) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 1 contract

Sources: Credit Agreement (Rand Logistics, Inc.)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~8.1, any Lender may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") " substantially in the form attached hereto as Exhibit ~~9.1(a)~~ 8.1 and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent); (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $~~5,000,000~~ 2,500,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) ~~include~~ require a payment to Agent of an assignment fee of $3,500. Notwithstanding the above, Agent may in its sole and absolute discretion permit any assignment by a Lender to a Person or Persons that are not Qualified Assignees. In the case of an assignment by a Lender under this Section ~~9.1~~8.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ all other Lenders hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrowers hereby acknowledge and agree that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender." In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 8.1(a), (a) ~~have been complied with. Agent hereby agrees~~ any Lender may at any time pledge the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to ~~provide Borrower with commercially reasonable~~ a Federal Reserve Bank, (b) any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor or pledge such Obligations and rights to trustee for the benefit of its investors and (c) any Lender may assign the Obligations to an Affiliate of such Lender or to a Person that is a Lender prior ~~written notice~~ to the date of ~~any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower~~such assignment. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.10, ~~1.15~~1.11, ~~1.16~~ 8.3 and ~~9.8~~9.1, ~~Borrower acknowledges~~ Borrowers acknowledge and ~~agrees~~ agree that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "Lender". ." Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor~~ or any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 8.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party shall assist each Lender permitted to sell assignments or participations under this Section 8.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the prompt preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants, all on a timetable established by Agent in its sole discretion. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 5.5. Agent shall maintain, on behalf of Borrowers, in its offices located at 500 West Monroe Street, Chicago, Illinois or such other office as Age▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇ "▇▇▇▇▇▇▇▇" ▇▇▇ ▇▇▇▇▇ding the name, address, commitment and Loans owing to each Lender. The entries in such register shall be presumptive evidence of the amounts due and owing to each Lender in the absence of manifest error. Borrowers, Agent and each Lender may treat each Person whose name is recorded in such register pursuant to the terms hereof as a Lender for all purposes of this Agreement. The register described herein shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 9.13. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would 42 be subject to capital adequacy or similar requirements under Section 1.10(a), increased costs or an inability to fund LIBOR Loans under Section 1.10(b), or withholding taxes in accordance with Section 1.11.

Appears in 1 contract

Sources: Credit Agreement (Golfsmith International Holdings Inc)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~8.1, any Lender may make ~~an assignment~~ assignments to a ~~Qualified Assignee~~ Person (other than a natural Person) of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender ~~shall~~(a “Sale”) shall be for a fixed and not a varying percentage of the assigning Lender’s respective Loans, Commitments and Letter of Credit Obligations (but do not have to be ratable between the Revolving Loans and Term Loans) and: (i) shall require the consent of Agent (which consent shall not be unreasonably withheld or ~~delayed with respect to a Qualified Assignee~~delayed) ~~and, so long as no Event of Default has occurred and is then continuing, Borrower~~ if (~~which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require~~ A) in the ~~consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution~~ case of an assignment ~~agreement~~ of any Revolving Loan, Revolving Loan Commitment or unfunded Term Loan Commitment, such assignment is to any Person that is not a Lender with an existing Commitment in respect of the same facility as the assigned Loans or Commitment, an Affiliate of such assigning Lender or an investment fund managed by the same investment advisor as the assigning Lender, or (~~an "Assignment Agreement"~~B) ~~substantially~~ in the ~~form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to~~case of an assignment of any Loan, ~~and acknowledged by, Agent~~such assignment is not a Lender Group Assignment; (ii) ~~be conditioned on such assignee~~ except with respect to any Lender ~~representing to~~ Group Assignment or as approved in writing by the ~~assigning Lender~~ Agent and ~~Agent that it is purchasing the applicable Loans to be assigned to it for its own account~~Borrower, ~~for investment purposes and not with a view to the distribution thereof; (iii)~~ after giving effect to any such partial assignment, the assignee Lender shall have Loans and Commitments in an amount at least equal to $~~5,000,000~~ 1,000,000 and the assigning Lender shall have retained Loans and Commitments in an amount at least equal to $~~2,500,000~~1,000,000 (unless all of the Loans and Commitments of such assigning Lender have been assigned); (iii) shall require the consent of Borrower (which consent shall not be unreasonably withheld or delayed) if (A) no Event of Default has occurred and is continuing, and (B) such assignment is not a Lender Group Assignment; (iv) ~~include~~ if such assignment is an assignment of Revolving Loans or a ~~payment~~ Revolving Loan Commitment, shall require the consent of the Swing Line Lender and L/C Issuer (which consent shall not be unreasonably withheld or delayed), (v) if such assignment is an assignment of a Revolving Loan or a Commitment, such assignment shall not be to any Credit Party or Affiliate thereof and (vi) if such assignment is an assignment of a Term Loan to a Credit Party or Affiliate thereof, such assignment shall be subject to the additional conditions set forth in Section 8.1(i). The parties to each Sale (other than those described in clause (g) or (h) below) shall execute and deliver to Agent an Assignment via an electronic settlement system designated by Agent (or, if previously agreed with Agent, via a manual execution and delivery of the Assignment) evidencing such Sale, together with any existing Note subject to such Sale (or any affidavit of loss therefor acceptable to Agent), any tax forms required to be delivered pursuant to Section 1.9 and payment of an assignment fee in the amount of $3,500, provided that (1) if a Sale is a Lender Group Assignment under clause (ii) or (iii) of the definition thereof then no assignment fee shall be due in connection with such Sale, and (2) if a Sale by a Lender is not a Lender Group Assignment under Clause (ii) or (iii) of the definition thereof, and concurrently such Lender makes a Lender Group Assignment under Clause (ii) or (iii) of the definition thereof, then only one assignment fee of $3,500 shall be due in connection with such Sale. In Upon receipt of all the foregoing, and conditioned upon such receipt and, if such Assignment is not a Lender Group Assignment, upon Agent (and Borrower, if applicable) consenting to such Assignment (if required), from and after the effective date specified in such Assignment, Agent shall record or cause to be recorded in the Register the information contained in such Assignment. Subject to the recording of an Assignment by Agent in the Register pursuant to Section 1.7(b), (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment, shall have the rights and obligations of a Lender, (ii) any applicable Note shall be transferred to such assignee through such entry and (iii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment, relinquish its rights (except for those surviving the termination of the Commitments and the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto). Borrower hereby acknowledges and agrees that any assignment by shall give rise to a ~~Lender under this Section 9.1,~~ direct obligation of Borrower to the assignee and that the assignee shall ~~have~~be considered to be a “Lender.” In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the ~~extent~~ applicable Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such ~~assignment~~Lender shall so notify Borrower and Borrower shall, upon the ~~same rights~~request of Agent or such Lender, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a)execute new Notes in exchange for the Notes, ~~the consummation of which does not require consent of Borrower~~if any, being assigned. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral or release any one or more Guarantors if the effect of such release would be to diminish all or substantially all of the collective value of the credit support provided by the Guaranties (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.8, ~~1.15~~1.9, ~~1.16~~ 8.3 and ~~9.8~~9.1, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "“Lender". .” Except as set forth in the preceding ~~sentence,~~ sentence neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 8.1, no Lender shall, as between Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Holdings and Borrower shall assist each Lender permitted to sell assignments or participations under this Section 8.1 as required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the prompt preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants, all on a timetable established by Agent in its sole discretion. Holdings and Borrower shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Budget delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in compliance with the representations contained in Section 5.5. (e) A Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 9.14. (f) Unless an Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.8(a), increased costs or an inability to fund LIBOR Loans under Section 1.8(b), or withholding taxes in accordance with Section 1.9. (g) In addition to the other rights provided in this Section 8.1, each Lender may grant a security interest in, or otherwise assign as collateral, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Loans), to (A) any federal reserve bank (pursuant to Regulation A of the Federal Reserve Board), without notice to Agent or (B) any holder of, or trustee for the benefit of the holders of, such Lender’s Indebtedness or equity securities, by notice to Agent; provided, however, that no such holder or trustee, whether because of such grant or assignment or any foreclosure thereon (unless such foreclosure is made through an assignment in accordance with clause (a) above), shall be entitled to any rights of such Lender hereunder and no such Lender shall be relieved of any of its obligations hereunder. (h) In addition to the other rights provided in this Section 8.1, each Lender may, (x) with notice to Agent, grant to an SPV the option to make all or any part of any Loan that such Lender would otherwise be required to make hereunder (and the exercise of such option by such SPV and the making of Loans pursuant thereto shall satisfy the obligation of such Lender to make such Loans hereunder) and such SPV may assign to such Lender the right to receive payment with respect to any Obligation and (y) without notice to or consent from Agent or Borrower, sell participations to one or more Persons in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Term Loans, Revolving Loans and Letters of Credit); provided, however, that, whether as a result of any term of any Loan Document or of such grant or participation, (i) no such SPV or participant shall have a commitment, or be deemed to have made an offer to commit, to make Loans hereunder, and, except as provided in the applicable option agreement, none shall be liable for any obligation of such Lender hereunder, (ii) such Lender’s rights and obligations, and the rights and obligations of the Credit Parties and the Secured Parties towards such Lender, under any Loan Document shall remain unchanged and each other party hereto shall continue to deal solely with such Lender, which shall remain the holder of the Obligations in the Register, except that (A) each such participant and SPV shall be entitled to the benefit of Section 1.9, but, with respect to Section 1.9(c), only to the extent such participant or SPV delivers the tax forms such Lender is required to collect pursuant to Section 1.9 and then only to the extent of any amount to which such Lender would be entitled in the absence of any such grant or participation and (B) each such SPV may receive other payments that would otherwise be made to such Lender with respect to Loans funded by such SPV to the extent provided in the applicable option agreement and set forth in a notice provided to Agent by such SPV and such Lender, provided, however, that in no case (including pursuant to clause (A) or (B) above) shall an SPV or participant have the right to enforce any of the terms of any Loan Document, and (iii) the consent of such SPV or participant shall not be required (either directly, as a restraint on such Lender’s ability to consent hereunder or otherwise) for any amendments, waivers or consents with respect to any Loan Document or to exercise or refrain from exercising any powers or rights such Lender may have under or in respect of the Loan Documents (including the right to enforce or direct enforcement of the Obligations), except for those described in clauses (ii) and (iii) of Section 9.2(c) with respect to amounts, or dates fixed for payment of amounts, to which such participant or SPV would otherwise be entitled and, in the case of participants, except for those described in clause (v) of Section 9.2(c). No party hereto shall institute (and each of Borrower and Holdings shall cause each other Credit Party not to institute) against any SPV grantee of an option pursuant to this clause (h) any bankruptcy, reorganization, insolvency, liquidation or similar proceeding, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper of such SPV; provided, however, that each Lender having designated an SPV as such agrees to indemnify each Credit Party against any Liability that may be incurred by, or asserted against, such Credit Party as a result of failing to institute such proceeding (including a failure to get reimbursed by such SPV for any such Liability). The agreement in the preceding sentence shall survive the termination of the Commitments and the payment in full of the Obligations. (i) Notwithstanding anything to the contrary contained in this Agreement, so long as (w) the conditions set forth in Section 8.1(a) with respect to any assignments are satisfied with respect to such repurchase, (x) both before and after giving effect to such assignment, no Advances are, or will be, outstanding, (y) no Default or Event of Default has occurred and is continuing or would result from such assignment and (z) the Borrower has delivered a certificate to the Agent in form and substance reasonably satisfactory to the Agent and signed by the Chief Executive Officer or Chief Financial Officer of the Borrower certifying that each of the conditions set forth in this Section 8.1(i) have been satisfied and that the terms of such repurchase conform to the requirements set forth herein, then a Credit Party or an Affiliate of a Credit Party may repurchase outstanding Term Loans on the following basis: (i) such Term Loans shall be purchased from Lenders holding such Term Loans through an auction process the terms and conditions of which auction shall be determined by the Agent acting in consultation with the Borrower; provided that, in any event, (A) any offer by any Credit Party or Affiliate thereof to repurchase any Term Loans pursuant to this Section 8.1(i) shall be made to all Lenders holding the type or Series of Term Loans to be repurchased on the same terms and conditions for each such offer and (B) each Lender accepting such an offer shall be, subject to the terms and conditions of the auction, entitled to sell and receive payment for repurchase of such Lender’s Term Loans of that type or Series ratably based on the aggregate principal amount of such Term Loans owing to all Lenders who have accepted such offer for repurchase; (ii) (A) the Borrower shall have paid all accrued and unpaid interest, if any, on the repurchased Term Loans to the date of repurchase of such Term Loans, (B) such repurchases and cancellations shall not be deemed to be voluntary or optional prepayments pursuant to Section 1.5(a) and (C) no such repurchases and cancellations shall change the Scheduled Installments (other tha

Appears in 1 contract

Sources: Credit Agreement (TNS Inc)

Assignment and Participations. (a) ~~Subject to the terms of this Section 9.1~~Each Lender may, and any Lender ~~may make~~ that has become an Affected Lender, if so requested by the Borrower within 60 days thereafter, will, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment or Commitments, the Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under and in respect of one or more Facilities (other than the Competitive Bid Facility or as set forth in clause (iv) below), (ii) except in the case of an assignment to a ~~Qualified Assignee of~~Person that, immediately prior to such assignment, was a Lender or ~~sell participations in, at any time or times~~an assignment of all of a Lender's rights and obligations under this Agreement, the ~~Loan Documents, Loans, Letter~~ amount of ~~Credit Obligations~~ the Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed Acceptance with respect to ~~a Qualified Assignee~~such assignment) ~~and~~shall in no event be less than $10,000,000, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) ~~after giving effect~~ each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a request by the Borrower pursuant to this Section 8.07(a) with respect to any Affected Lender shall be arranged by the Borrower after consultation with the Agent and shall either be an assignment of all of the rights and obligations of the Affected Lender under this Agreement or an assignment of a portion of such ~~partial assignment~~rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the Affected Lender under this Agreement, (v) no Affected Lender shall be obligated to make any such assignment as a result of a request by the ~~assignee~~ Borrower pursuant to this Section 8.07(a) unless and until such Affected Lender shall have ~~Commitments~~ received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to ~~$5,000,000~~ the aggregate outstanding principal amount of the Advances owing to such Lender in respect of the rights and obligations assigned pursuant to such assignment, together with accrued interest thereon to the ~~assigning~~ date of payment of such principal amount and all other amounts payable to such Affected Lender under this Agreement (including, without limitation, under Section 8.04(c) hereof, which shall apply as though all Advances of the Affected Lender were being prepaid in full on the date of assignment), (vi) no such assignments shall be permitted without the consent of the Agent until the Agent shall have ~~retained~~ notified the Lender Parties that syndication of the Commitments ~~in an amount at least equal to $2,500,000;~~ hereunder has been completed, and (ivvii) ~~include~~ the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a ~~payment to Agent of an assignment~~ processing and recordation fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower3,000. (b) ~~Any participation by~~ Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, the Lender Party assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any ~~part~~ statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its ~~Commitments~~ obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender; and (viii) such assignee agrees that on the date of the Assignment and Acceptance pursuant to which it becomes a Lender Party it shall provide to the Agent and the Borrower the forms referred to under Section 2.14(e). (d) The Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lender Parties and the Commitment under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the "Register"). The entries in the Register shall be ~~made with~~ conclusive and binding for all purposes, absent manifest error, and the ~~understanding that~~ Borrower, the Agent and the Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all ~~amounts payable by Borrower hereunder~~ purposes of this Agreement. The Register shall be ~~determined~~ available for inspection by the Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under any Facility pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder under such Facility, a new Note or Notes to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A-1, ▇-▇ ▇▇ A-3 hereto, as the case may be. (f) Each Lender Party may sell participations to one or more Persons (other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender ~~had not sold~~ Party's obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such ~~participation~~Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, ~~and that~~ (iii) such Lender Party shall remain the holder of any such Note or Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such Lender Party's rights and obligations under this Agreement, and (v) no participant under any such participation shall ~~not be entitled~~ have any right to ~~require~~ approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by the Borrower therefrom, except to the extent that such ~~Lender to take~~ amendment, waiver or ~~omit to take any action hereunder except actions directly affecting (i) any reduction in~~ consent would reduce the principal ~~amount~~ of, or interest ~~rate~~ on, the Notes or ~~Fees~~ any fees or other amounts payable ~~with respect to~~hereunder, in each case to the extent subject to such participation, or postpone any ~~Loan in which such holder participates~~date fixed for any payment of principal of, ~~(ii)~~ or interest on, the Notes or any ~~extension of the scheduled amortization of the principal amount of any Loan in which such holder participates~~ fees or ~~the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral~~ other amounts payable hereunder (other than any payment required by Section 2.06), in each case to the extent subject to such participation. (g) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower and its Subsidiaries furnished to such Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender Party on the terms provided herein. (h) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the ~~terms~~ Board of ~~this Agreement,~~ Governors of the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurredFederal Reserve System.

Appears in 1 contract

Sources: Credit Agreement (Beckman Instruments Inc)

Assignment and Participations. (a) ~~Subject~~ The Credit Parties signatory hereto consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Agent (which ~~consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent~~ shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "Assignment Agreement") substantially in the ~~form~~ from attached hereto as Exhibit 9.1(a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, however, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.

Appears in 1 contract

Sources: Credit Agreement (Verdant Brands Inc)

Assignment and Participations. (a) ~~Subject~~ The Credit Parties signatory hereto consent to ~~the terms of this Section 9.1,~~ any ~~Lender may make an~~ Lender's assignment ~~to a Qualified Assignee~~ of, ~~or sell~~ and/or sale of participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender ~~shall:~~ shall (i) require the consent of Agent (which ~~consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent~~ shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "~~Assignment Agreement~~ASSIGNMENT AGREEMENT") substantially in the form attached hereto as ~~Exhibit~~ EXHIBIT 9.1(a) and otherwise in form and substance ~~reasonably~~ satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, ~~the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and~~ the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this ~~Section~~ SECTION 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~it would if it were a Lender hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender." In all instances, each Lender's liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this ~~Section~~ SECTION 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any lender that is an investment fund may assign the Obligations held by it and such Lender's rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, however, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender's obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of ~~Sections~~ SECTIONS 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.and

Appears in 1 contract

Sources: Credit Agreement (Kaynar Technologies Inc)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment ~~to a Qualified Assignee~~ of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender (other than to an Affiliate of such Lender) shall: (i) require the consent of Agent and (~~which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and,~~ so long as no Event of Default has occurred and is ~~then~~ continuing, ) Borrower (~~which~~ such consent ~~shall~~ not to be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) ~~or 8.1(i) has occurred and is then continuing),~~ and the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has occurred and is continuing, require the consent of Borrower Representative, which shall not be unreasonably withheld or delayed. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender"”; provided, (i) a participant shall not be entitled to receive any greater payment under Sections 1.13, 1.15, 1.16 or 9.8 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, and such participant must comply with the provisions of Sections 1.13, 1.15, 1.16 and 9.8 as though it were a Lender and (ii) a participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 1.15(c) unless Borrower Representative is notified of the participation sold to such participant and such participant agrees, for the benefit of Borrowers, to comply with Section 1.15(c) as though it were a Lender. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) If GE Capital should seek a primary syndication of the Loans and Commitments under this Agreement to Lenders reasonably acceptable to Borrowers, then at the request of GE Capital, Borrower Representative agrees to actively assist, and cooperate with (and cause its Subsidiaries and use reasonable efforts to cause Borrower Representative’s advisors to actively assist and cooperate with), GE Capital in effecting and completing such syndication, including, participating in bank and other relevant meetings, preparing and providing to GE Capital information relating to the syndication reasonably requested by GE Capital, using commercially reasonable efforts to use its existing banking relationships to assist with GE Capital’s syndication efforts, and assisting GE Capital in the preparation of a confidential information memorandum, presentations and other offering materials to be used in connection with the syndication and confirming that all materials made available to GE Capital by Borrower Representative or any of its representatives, taken as a whole and after giving effect to all written updates thereto, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made. GE Capital will, in consultation with Borrower Representative, manage and control all aspects of any such syndication. (e) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), an inability to fund LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrowers, the option to provide to Borrowers all or any part of any Loans that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and Agent and without paying any processing fee therefor assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder. (h) Nothing contained in this Section 9 shall require the consent of any party for GE Capital to assign any of its rights in respect of any Swap Related Reimbursement Obligation.

Appears in 1 contract

Sources: Senior Secured, Super Priority Debtor in Possession Credit Agreement (Milacron Inc)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~9.1 , any Lender (and the Fronting Lender pursuant to the exercise of the Put Right and GE Capital pursuant to the exercise of the GE Put Right, each in accordance with Section 1.22 ) may make an assignment to a Qualified Assignee who has complied with the requirements of Section 1.15 (c) of, or in the case of the Fronting Lender, to the European Revolving Loan Participants of, or sell participations in, at any time or times, the Loan Documents, U.S. Revolving Loans, European Revolving Loans, U.S. Letter of Credit Obligations, European Letters of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's ’s or Fronting Lenders rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender (other than the exercise of the Put Right or the GE Put Right) shall: (i) require the consent of Administrative Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "" Assignment ~~Agreement~~Agreement ") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Administrative Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Administrative Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to the Dollar Equivalent of $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to the Dollar Equivalent of $~~2,500,000~~5,000,000; ~~and~~ (iv) include a payment to Administrative Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has occurred and is continuing, require the consent of U.S. Borrower, which shall not be unreasonably withheld or delayed; provided , that no such consent shall be required for an assignment to a Qualified Assignee. In the case of an assignment by a Lender under this Section ~~9.1~~9.1 , the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all~~ all other Lenders hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Administrative Agent, any Lender or Fronting Lender assigns or otherwise transfers all or any part of the Obligations, Administrative Agent, any such Lender or Fronting Lender shall so notify Borrowers and Borrowers shall, upon the request of Administrative Agent, such Lender or Fronting Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1 (a) ~~have been complied with. Agent hereby agrees~~ , any Lender may at any time pledge the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to ~~provide Borrower with commercially reasonable prior written notice of~~ a Federal Reserve Bank, and any ~~assignment~~ Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided , that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or ~~sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower~~under any other Loan Document. (b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections ~~1.13~~1.13 , ~~1.15~~1.15 , 1.16 and ~~9.8~~9.8 , each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither ~~Agent~~ any Agent, if applicable, nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1 , no Lender shall, as between Borrowers and that Lender, or any Agent, if applicable, and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Administrative Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.4 (c) . (e) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8 . (f) Notwithstanding anything to the contrary contained in the foregoing clauses (a) through (e) of this Section 9.1 , the exercise of the Put Right by the Fronting Lender and the GE Put Right by GE Capital shall not be subject to any condition, or restriction imposed on any participations contained in this Section 9.1 .

Appears in 1 contract

Sources: Credit Agreement (Fibermark Inc)

Assignment and Participations. (a) Subject to the terms of this Section ~~9.1~~14.02, any ~~Lender~~ Purchaser may make an assignment to a ~~Qualified Assignee~~ qualified assignee of, or ~~sell~~ sale of participations in, at any time or times, the ~~Loan~~ Related Documents, ~~Loans, Letter~~ its Pro Rata Share of ~~Credit Obligations~~ the Purchaser Interests and ~~any~~ its Commitment or any WNC Receivables, LLC Receivables Purchase and Servicing Agreement portion thereof or interest therein, including any ~~Lender~~Purchaser's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a ~~Lender~~ Purchaser shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a ~~Qualified Assignee~~qualified assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement ~~(an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise~~ in form and substance reasonably satisfactory to, and acknowledged by, ~~Agent~~Agent (an "Assignment Agreement"); (ii) be conditioned on such assignee ~~Lender~~ Purchaser representing to the assigning ~~Lender~~ Purchaser and Agent that it is purchasing the applicable ~~Loans~~ Purchaser Interest to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee ~~Lender~~ Purchaser shall have Commitments in an amount at least equal to $5,000,000 and the assigning ~~Lender~~ Purchaser shall have retained Commitments in an amount at least equal to $~~2,500,000~~5,000,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a ~~Lender~~ Purchaser under this Section ~~9.1~~14.02(a), the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Purchasers hereunder. ~~Agent~~ The assigning Purchaser shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Seller hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Seller to the assignee and that the assignee shall be considered to be a "Purchaser". In all instances, each Purchaser's liability to invest in the Purchaser Interests hereunder shall be several and not joint and shall be limited to such Purchaser's Pro Rata Share of the applicable Commitment. In the event Agent or ~~sale contemplated by~~ any Purchaser assigns or otherwise transfers all or any part of the Seller Secured Obligations, Agent or any such Purchaser shall so notify Seller. Notwithstanding the foregoing provisions of this Section ~~9.1(a~~14.02(a), any Purchaser may at any time pledge the ~~consummation of which does not require consent of Borrower~~Seller Secured Obligations held by it and such Purchaser's rights under this Agreement and the other Related Documents to a Federal Reserve Bank, and any Purchaser that is an investment fund may assign the Seller Secured Obligations held by it and such Purchaser's rights under this Agreement and the other Related Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Purchaser from such Purchaser's obligations hereunder or under any other Relevant Document. (b) Any participation by a ~~Lender~~ Purchaser of all or any part of its ~~Commitments~~ Commitment shall be made with the understanding that all amounts payable by ~~Borrower~~ Seller hereunder shall be determined as if that ~~Lender~~ Purchaser had not sold such participation, and that the holder of any such participation shall not be entitled to require such ~~Lender~~ Purchaser to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any ~~Loan~~ Seller Secured Obligations in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any ~~Loan~~ Purchaser Interest in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Seller Collateral (other than in accordance with the terms of this ~~Agreement, the Collateral Documents~~ Agreement or the other ~~Loan~~ Related Documents). Solely for purposes of Sections ~~1.13~~2.09 and 2.10, ~~1.15, 1.16 and 9.8, Borrower~~ Seller acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Seller to the participant and the participant shall be considered to be a "~~Lender~~Purchaser". Except as set forth in the preceding ~~sentence~~sentence none of Seller, ~~neither Borrower~~ the Originators, Servicer nor ~~any other Credit Party~~ Performance Guarantor shall have any obligation or duty to any participant. Neither Agent nor any ~~Lender~~ Purchaser WNC Receivables, LLC Receivables Purchase and Servicing Agreement (other than the ~~Lender~~ Purchaser selling a participation) shall have any duty to any participant and may continue to deal solely with the ~~Lender~~ Purchaser selling a participation as if no such sale had occurred.

Appears in 1 contract

Sources: Receivables Purchase and Servicing Agreement (Wabash National Corp /De)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, ~~Loans~~the Term Loan, ~~Letter of Credit Obligations~~ and any Term Loan Commitment or any portion thereof or interest therein, including any Lender's ’s rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "“Assignment Agreement"”) substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the ~~applicable Loans~~ Term Loan to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; and (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lenders hereunder. ~~Agent~~ The assigning Lender shall be relieved of its obligations hereunder with respect to its Term Loan Commitment or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment shall give rise to a direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Advances hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the Term Loan Commitment. In the event Agent or ~~sale contemplated by~~ any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lender may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under any other Loan Document. (b) Any participation by a Lender of all or any part of its ~~Commitments~~ Term Loan Commitment shall be made with the understanding that all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, ~~any~~ the Term Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of ~~any~~ the Term Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Borrowers to the participant and the participant shall be considered to be a "“Lender"”. Except as set forth in the preceding ~~sentence, neither~~ sentence no Borrower ~~nor any other~~ or Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Term Loan, the Notes or other Obligations owed to such Lender. (d) Each Credit Party executing this Agreement shall assist any Lender permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and, if requested by Agent, the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Credit Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and their respective affairs contained in any selling materials provided by them and all other information provided by them and included in such materials, except that any Projections delivered by Borrowers shall only be certified by Borrowers as having been prepared by Borrowers in compliance with the representations contained in Section 3.4(c). 44 Credit Agreement (Omni) (e) Any Lender may furnish any information concerning Credit Parties in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants); provided, that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8. (f) So long as no Event of Default has occurred and is continuing, no Lender shall assign or sell participations in any portion of its Term Loan or Term Loan Commitment to a potential Lender or participant, if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy or similar requirements under Section 1.16(a), increased costs under Section 1.16(b), or withholding taxes in accordance with Section 1.15(a). (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and Borrowers, the option to provide to Borrowers all or any part of Advances that such Granting Lender would otherwise be obligated to make to Borrowers pursuant to this Agreement; provided, that (i) nothing herein shall constitute a commitment by any SPC to make any Advance; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of any such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if such Advance were made by such Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrowers and Agent and without paying any processing fee therefor assign all or a portion of its interests in the Term Loan to the Granting Lender or to any financial institutions (consented to by Borrowers and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of the Term Loan and (ii) disclose on a confidential basis any non-public information relating to its Term Loan to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be amended without the prior written consent of each Granting Lender, all or any of whose Advances are being funded by an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including without limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.

Appears in 1 contract

Sources: Credit Agreement (Omni Energy Services Corp)

Appears in 1 contract

Sources: Credit Agreement (Pioneer Drilling Co)

Assignment and Participations. (a) Subject to the terms of this Section 9.1, any ~~Lender~~ Lessor may make an assignment to a Qualified Assignee of, or ~~sell~~ sale of participations in, at any time or times, the ~~Loan~~ Credit Documents, ~~Loans~~the Rent, ~~Letter of Credit Obligations and any Commitment~~ the other Obligations, or any portion thereof or interest therein, including any ~~Lender~~Lessor's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a ~~Lender~~ Lessor shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee ~~Lender~~ Lessor representing to the assigning ~~Lender~~ Lessor and Agent that it is purchasing the applicable ~~Loans~~ Obligations to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee ~~Lender~~ Lessor shall have ~~Commitments~~ a portion of such Obligations in an amount at least equal to $~~5,000,000~~ 2,500,000 and the assigning ~~Lender~~ Lessor shall have retained ~~Commitments~~ a portion of such Obligations in an amount at least equal to $2,500,000; ~~and~~ (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a ~~Lender~~ Lessor under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as ~~all (a) have been complied with~~all other Lessors hereunder. ~~Agent~~ The assigning Lessor shall be relieved of its obligations hereunder with respect to a portion of such Obligations from and after the date of such assignment. Lessee hereby acknowledges and agrees ~~to provide Borrower with commercially reasonable prior written notice of~~ that any assignment ~~or sale contemplated by~~ shall give rise to a direct obligation of Lessee to the assignee and that the assignee shall be considered to be a "Lessor". In all instances, each Lessor's liability to have outstanding the Obligations hereunder shall be several and not joint and shall be limited to such Lessor's Pro Rata Share of the Obligations. Notwithstanding the foregoing provisions of this Section 9.1(a), any Lessor may at any time pledge the ~~consummation of which does not require consent of Borrower~~Obligations held by it and such Lessor's rights under this Agreement and the other Credit Documents to a Federal Reserve Bank, and any Lessor that is an investment fund may assign the Obligations held by it and such Lessor's rights under this Agreement and the other Credit Documents to another investment fund managed by the same investment advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lessor from such Lessor's obligations hereunder or under any other Credit Document. (b) Any participation by a ~~Lender~~ Lessor of all or any part of its ~~Commitments~~ Obligations hereunder shall be made with the understanding that all amounts payable by ~~Borrower~~ Lessee hereunder shall be determined as if that ~~Lender~~ Lessor had not sold such participation, and that the holder of any such participation shall not be entitled to require such ~~Lender~~ Lessor to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any ~~Loan~~ Obligations in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any ~~Loan~~ Obligations in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other ~~Loan~~ Credit Documents). Solely for purposes of Sections ~~1.13~~1.8, ~~1.15~~1.9, ~~1.16~~ 1.10 and 9.8, ~~Borrower~~ Lessee acknowledges and agrees that a participation shall give rise to a direct obligation of ~~Borrower~~ Lessee to the participant and the participant shall be considered to be a "~~Lender~~Lessor". Except as set forth in the preceding ~~sentence,~~ sentence neither ~~Borrower~~ Lessee nor any other ~~Credit~~ Savvis Party shall have any obligation or duty to any participant. Neither Agent nor any ~~Lender~~ Lessor (other than the ~~Lender~~ Lessor selling a participation) shall have any duty to any participant and may continue to deal solely with the ~~Lender~~ Lessor selling a participation as if no such sale had occurred. (c) Except as expressly provided in this Section 9.1, no Lessor shall, as between Lessee and that Lessor, or Agent and that Lessor, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Obligations owed to such Lessor. (d) Each Savvis Party executing this Agreement shall assist any Lessor permitted to sell assignments or participations under this Section 9.1 as reasonably required to enable the assigning or selling Lessor to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the participation of management in meetings with, potential assignees or participants. Each Savvis Party executing this Agreement shall certify the correctness, completeness and accuracy of all descriptions of the Savvis Parties and their respective affairs contained in any selling materials provided by it and all other information provided by it and included in such materials, except that any Business Plan - 4 Years delivered by Holdings shall only be certified by Holdings as having been prepared by Holdings in compliance with the representations contained in Section 3.4(c). (e) A Lessor may furnish any information concerning Savvis Parties in the possession of such Lessor from time to time to assignees and participants (including prospective assignees and participants); provided that such Lessor shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 11.8.

Appears in 1 contract

Sources: Master Lease Agreement (Savvis Communications Corp)

Assignment and Participations. ~~(a) Subject~~ This Agreement shall be binding upon, and inure to the ~~terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee~~ benefit of, ~~or sell participations in, at any time or times~~the Borrower, the ~~Loan Documents~~Agent, ~~Loans~~the Lenders and their respective successors and assigns, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require except that the ~~consent of Agent (which consent shall~~ Borrower may not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or assign any of its ~~Affiliates shall require~~ rights or obligations hereunder without the prior written consent of ~~Borrower so long~~ the Lenders. In giving any consent as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect aforesaid to any ~~such partial assignment~~assignment by the Borrower, the ~~assignee~~ Lenders shall be entitled to impose such conditions as they shall deem advisable. Any Lender shall ~~have Commitments in an amount at least equal~~ be entitled to ~~$5,000,000 and~~ assign the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all (a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower. (b) Any participation by a Lender of all whole or any part of its ~~Commitments shall be made~~ rights or obligations under this Agreement or grant participation(s) in the Credit Facility to any subsidiary or holding company of such Lender, to any subsidiary company of any thereof or, with the ~~understanding that all amounts payable by~~ consent of the Borrower ~~hereunder~~ and the Agent (in each case not to be unreasonably withheld) to any other bank or financial institution whatsoever and such Lender shall ~~be determined as if that Lender had not sold such participation, and that the holder~~ forthwith give notice of any such assignment or participation to the Agent and the Borrower, provided, however, that (a) except as provided by Section 16, in such event Den norske Bank ASA shall remain the agent, (b) any such assignment or participation shall ~~not~~ be ~~entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting~~ in a minimum amount of Ten Million Dollars (i$10,000,000), (c) any ~~reduction~~ such assignment to a Lender is to be made pursuant to an Assignment and Assumption Agreement substantially in the ~~principal amount of~~form of Exhibit 5 hereto, (d) Den norske Bank ASA's Commitment shall be not less than twenty-five percent (25%) of the Committed Amount and (e) except as provided in Section 14.3 and for such reasonable legal fees and expenses incurred in connection with the documentation of such an assignment (but not participation), no such assignment or participation will result in any additional costs to, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreementadditional material requirements on, the ~~Collateral Documents or~~ Borrower. The Borrower will take all reasonable actions requested by the ~~other Loan Documents)~~Lenders to effect such assignment, including, without limitation, the execution of a written consent to such Assignment and Assumption Agreement. ~~Solely for purposes of Sections 1.13~~12 ILLEGALITY, ~~1.15~~INCREASED COST, ~~1.16 and 9.8~~NON-AVAILABILITY, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurredETC.

Appears in 1 contract

Sources: Revolving Credit Facility Agreement (Seacor Smit Inc)

Common use of Assignment and Participations Clause in Contracts