Assignment; Participations. Borrower may not assign its rights or Obligations under this Agreement without the prior written consent of Bank. Bank may at any time assign or pledge its rights and obligations under this Agreement with the prior written consent of Borrower to any other party provided that the prior written consent of the Bank shall not be required (i) if an Event of Default under Section 9(a) or 9(h) of this Agreement has occurred and is continuing or (ii) if such assignment is to an affiliate of Bank. Subject to the foregoing, all provisions contained in this Agreement or any document or agreement referred to herein or relating hereto shall inure to the benefit of Bank, its successors and assigns, and shall be binding upon Borrower, its successors and assigns; provided, however, that no assignee shall be entitled to a greater payment pursuant to Section 3(i) than Bank would have been entitled to receive if it had not assigned its interest hereunder. Bank may sell participations to one or more Persons in or to all or a portion of its rights and obligations under this Agreement; provided, however, that (i) Bank’s obligations under this Agreement shall remain unchanged, (ii) Bank shall remain solely responsible to the other parties hereto for the performance of such obligations; and (iii) Borrower shall continue to deal solely and directly with Bank in connection with Bank’s rights and obligations under this Agreement and the other Loan Documents. Borrower agrees that each participant shall be entitled to the benefits of Sections 3(i) 3(j), 3(k) and 4 (subject to the requirements and limitations therein, including the requirements under Sections 4(c) and (d) (it being understood that the documentation required under Sections 4(c) and (d) shall be delivered to Bank)) to the same extent as if it had acquired its interest by assignment; provided that such participant shall not be entitled to receive any greater payment under Sections 3(i) 3(j), 3(k) and 4, with respect to any participation, than Bank would have been entitled to receive. If Bank sells any participations of its right and obligations under this Agreement to a non-U.S. participant, Bank shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that Bank shall not have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations information under any Loan Document) to any person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and Bank shall treat each person whose name is recorded in the Participation Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
Appears in 1 contract
Sources: Loan and Security Agreement (Caliber Home Loans, Inc.)
Assignment; Participations. Borrower may not assign its rights or Obligations under this (a) This Agreement without the prior written consent of Bank. Bank may at any time assign or pledge its rights shall be binding upon, and obligations under this Agreement with the prior written consent of Borrower to any other party provided that the prior written consent of the Bank shall not be required (i) if an Event of Default under Section 9(a) or 9(h) of this Agreement has occurred and is continuing or (ii) if such assignment is to an affiliate of Bank. Subject to the foregoing, all provisions contained in this Agreement or any document or agreement referred to herein or relating hereto shall inure to the benefit of Bankof, its the Borrower, the Agent, the Banks and their respective successors and assigns, except that the Borrower may not assign or transfer its rights or obligations hereunder.
(b) Each Bank may, with the consent of the Agent and shall the Borrower (which consent will not be binding upon Borrowerunreasonably withheld or delayed) assign all or any part of its Commitments, its successors and assigns; provided, however, that no assignee shall be entitled Note or Loans to a greater payment pursuant to Section 3(i) than Bank would have been entitled to receive if it had not assigned its interest hereunder. Bank may sell participations to one another bank or more Persons in or to all or a portion of its rights and obligations under this Agreement; other Person provided, however, that (i) Bank’s obligations no such consent of the Borrower shall be required in an Event of Default under this Agreement Section 9.01 hereof shall remain unchangedhave occurred and is continuing, (ii) Bank no such consent by the Borrower or the Agent shall remain solely responsible be required in the case of any assignment to the other parties hereto for the performance of such obligationsanother Bank; and (iii) any such partial assignment shall be made in an amount of at least $2,500,000. Upon execution and delivery by the assignee to the Borrower and the Agent of an instrument in writing pursuant to which such assignee agrees to become a "Bank" hereunder (if not already a Bank) having the Commitment and Loan specified in such instrument, and upon consent thereto by the Borrower and the Agent, to the extent required above, the assignee shall continue have, to deal solely the extent of such assignment (unless otherwise provided in such assignment with the consent of the Borrower and directly with Bank in connection with Bank’s the Agent), the obligations, rights and obligations benefits of a Bank hereunder holding the Commitment and Loans (or portions thereof) assigned to it (in addition to the Commitment and Loans, if any, theretofore held by such Assignee) and the assigning Bank shall, to the extent of assignment, be released from the Commitment (or portion thereof) so assigned. Upon each such assignment the assignee shall pay the Agent an assignment fee of $3,500.00 and if the assignee shall not be a Bank, deliver to the Agent an Administrative Questionnaire.
(c) A Bank may sell or agree to sell to one or more banks or other Persons a participation in all or any part of any Loans held by it, or in its Commitment, in which event each purchaser of a participation (a "Participant") shall not, except as otherwise provided in Section 10.17 hereof, have any rights or benefits under this Agreement or any Note (the participant's rights against such Bank in respect of such participation to be those set forth in the agreements executed by such Bank in 36 favor of the Participant). All amounts payable by the Borrower to any Bank under Section 2 hereof in respect of Loans held by it and the other Loan Documents. Borrower agrees that each participant its Commitment, shall be entitled determined as if such Bank had not sold or agreed to the benefits sell any participations in such Loan and Commitment, and as if such Bank were funding each of Sections 3(i) 3(j), 3(k) such Loan and 4 (subject to the requirements and limitations therein, including the requirements under Sections 4(c) and (d) (it being understood that the documentation required under Sections 4(c) and (d) shall be delivered to Bank)) to Commitment in the same extent as if way that it had acquired its interest is funding the portion of such Loan and Commitment in which no participations have been sold. The agreement executed by assignment; provided that such participant Bank in favor of the Participant shall not be entitled give the Participant the right to receive require such Bank to take or omit to take any greater action hereunder except action directly relating to (i) the extension of the Maturity Date, (ii) the extension of a payment under Sections 3(i) 3(j), 3(k) and 4, date with respect to any participationfees payable hereunder or any portion of the principal of or interest on any amount outstanding hereunder allocated to such participant, than Bank would have been (iii) the reduction of the principal amount outstanding hereunder, or (iv) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the Participant is entitled to receive. If receive under its agreement with such Bank.
(d) In addition to the assignments and participations permitted under paragraphs (b) and (c) above, any Bank sells any participations of its right may assign and obligations under this Agreement to a non-U.S. participant, Bank shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that Bank shall not have any obligation to disclose pledge all or any portion of its Loan and Note to (i) any affiliate of such Bank, or (ii) any Federal Reserve Bank as collateral security pursuant to Regulation A of the Participant Register Board of Governors of the Federal Reserve System and any operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the Borrower or any of its Subsidiaries in the possession of such Bank from time to time to assignees and participants (including the identity of prospective assignees and participants), provided that such Bank shall require any assignee or participant (prospective or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations information under any Loan Documentotherwise) to any person except agree in writing to maintain the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and Bank shall treat each person whose name is recorded in the Participation Register as the owner confidentiality of such participation for all purposes of this Agreement notwithstanding any notice to the contraryinformation.
Appears in 1 contract
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Agent, the Co-Agent, the Lenders, the Swingline Bank, the Issuing Bank and their respective successors and assigns, except that the Borrower may not assign or transfer its rights or Obligations obligations hereunder.
(b) After first obtaining the approval of the Agent, the Swingline Bank, the Issuing Bank and (provided no Event of Default exists as a result of the commencement of a case with respect to the Borrower under this Agreement without the prior written consent Federal Bankruptcy Code) the Borrower, which approval will not be unreasonably withheld, each Lender may assign to one or more banks, finance companies, insurance or other financial institutions all or a portion of Bank. Bank may at any time assign or pledge its rights and obligations under this Agreement with (including all or a portion of its Revolving Credit Commitment and the prior written consent Syndicated Loans owing to it and its participations in Letters of Borrower to any other party provided that the prior written consent of the Bank shall not be required (i) if an Event of Default under Section 9(a) or 9(h) of this Agreement has occurred and is continuing or (ii) if such assignment is to an affiliate of Bank. Subject to the foregoing, all provisions contained in this Agreement or any document or agreement referred to herein or relating hereto shall inure to the benefit of Bank, its successors and assigns, and shall be binding upon Borrower, its successors and assignsCredit); provided, however, that no assignee (i) each such assignment shall be entitled to of a greater payment constant, and not a varying, percentage of the assigning Lender's rights and obligations under this Agreement and the assignment shall cover the same percentage of such Lender's Revolving Credit Commitment and Syndicated Loans and participations in Letters of Credit; (ii) unless the Agent and the Borrower otherwise consent, the aggregate amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to Section 3(ieach such assignment (determined as of the effective date of the Assignment and Assumption Agreement with respect to such assignment) shall in no event be less than Five Million Dollars ($5,000,000) and shall be an integral multiple of One Million Dollars ($1,000,000); (iii) the parties to each such assignment shall execute and deliver to the Agent, for its approval and acceptance, an Assignment and Assumption Agreement in substantially the form attached hereto as Exhibit E with such changes therein (if any) as the Agent may approve (the "Assignment and Assumption Agreement"); and (iv) the Agent shall receive from the assignor a processing fee of Five Thousand Dollars ($5,000). Without restricting the right of the Agent, the Swingline Bank, the Issuing Bank would or (provided no Event of Default exists as a result of the commencement of a case with respect to the Borrower under the Federal Bankruptcy Code) the Borrower to reasonably object to any bank, finance company, insurance or other financial institution becoming an assignee of an interest of a Lender hereunder, each proposed assignee must be an existing Lender or a bank, finance company, insurance or other financial institution which (i) has (or, in the case of a bank which is a subsidiary, such bank's parent has) a rating of its senior unsecured debt obligations of not less than Baa-1 by Mood▇'▇ ▇▇▇estors Services, Inc. or a comparable rating by a rating agency acceptable to the Agent and (ii) has total assets in excess of Ten Billion Dollars ($10,000,000,000). Upon such execution, delivery, approval and acceptance, and on the effective date specified in the applicable Assignment and Assumption Agreement, (a) the assignee thereunder shall become a party hereto and a "Lender" for purposes hereof and, to the extent that rights and obligations hereunder have been entitled assigned to receive it pursuant to such Assignment and Assumption Agreement, shall have the rights and obligations of a Lender hereunder and (b) the Lender-assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption Agreement, relinquish its rights and be released from its obligations under this Agreement.
(c) By executing and delivering an Assignment and Assumption Agreement, the Lender-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 Assumption Agreement, 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 any other Facility Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Facility Document or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any Subsidiary or the performance or observance by the Borrower or any Subsidiary of any of their respective obligations under any Facility Document or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 7.08(a) and (b) and such other Facility Documents and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption Agreement; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Facility Documents as are delegated to the Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain a copy of each Assignment and Assumption Agreement delivered to and accepted by it and shall record the names and addresses of each Lender and the Revolving Credit Commitment of, and principal amount of the Syndicated Loans owing to, and the amount of participations in Letters of Credit of, such Lender from time to time. The Borrower, the Agent and the Lenders may treat each Person whose name is so recorded as a Lender hereunder for all purposes of this Agreement.
(e) Upon its receipt of an Assignment and Assumption Agreement executed by an assigning Lender and an assignee and consented to by the Borrower (except that no such consent of the Borrower shall be required if it had not an Event of Default exists as a result of the commencement of a case with respect to the Borrower under the Federal Bankruptcy Code), the Swingline Bank and the Issuing Bank, the Agent shall, if such Assignment and Assumption Agreement has been properly completed and is in substantially the form of Exhibit E, (i) accept such Assignment and Assumption Agreement, (ii) record the information contained therein and (iii) give prompt notice thereof to the Borrower and the Lenders. Upon request, the Borrower shall execute and deliver to the Agent an appropriate promissory note in favor of each assignee evidencing such assignee's Pro Rata Percentage of the Total Revolving Credit Commitment. If the Lender-assignor shall have assigned its interest hereunder. Bank entire Revolving Credit Commitment and Syndicated Loans, the original promissory note evidencing such Revolving Credit Commitment and Syndicated Loans shall be canceled and returned to the Borrower.
(f) Each Lender may sell participations to one or more Persons banks, finance companies, insurance or other financial institutions in or to all or a portion of its rights and obligations under this AgreementAgreement (including without limitation all or a portion of its Revolving Credit Commitment and the Syndicated Loans owing to it); provided, however, that (i) Bank’s such Lender's obligations under this Agreement shall remain unchanged, (ii) Bank shall remain solely responsible to the other parties hereto for the performance of such obligations; and (iii) Borrower shall continue to deal solely and directly with Bank in connection with Bank’s rights and obligations under this Agreement and the other Loan Documents. Borrower agrees that each participant shall be entitled to the benefits of Sections 3(i) 3(j), 3(k) and 4 (subject to the requirements and limitations therein, including the requirements under Sections 4(c) and (d) (it being understood that the documentation required under Sections 4(c) and (d) shall be delivered to Bank)) to the same extent as if it had acquired its interest by assignment; provided that such participant shall not be entitled to receive any greater payment under Sections 3(i) 3(j), 3(k) and 4, with respect to any participation, than Bank would have been entitled to receive. If Bank sells any participations of its right and obligations under this Agreement to a non-U.S. participant, Bank shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that Bank shall not have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or without limitation its other obligations information under any Loan Document) to any person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, Revolving Credit Commitment and Bank shall treat each person whose name is recorded in the Participation Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.its participations in
Appears in 1 contract
Sources: Credit Agreement (Movado Group Inc)
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Borrower, the Agent, the Banks and their respective successors and permitted assigns. The Borrower may not assign or transfer its rights or Obligations under this Agreement without the prior written consent of Bankobligations hereunder. Any Bank may at any time assign or pledge its rights and obligations under this Agreement with the prior written consent of Borrower to any other party provided that the prior written consent of the Bank shall not be required (i) if an Event of Default under Section 9(a) or 9(h) of this Agreement has occurred and is continuing or (ii) if such assignment is to an affiliate of Bank. Subject to the foregoing, all provisions contained in this Agreement or any document or agreement referred to herein or relating hereto shall inure to the benefit of Bank, its successors and assigns, and shall be binding upon Borrower, its successors and assigns; provided, however, that no assignee shall be entitled to a greater payment pursuant to Section 3(i) than Bank would have been entitled to receive if it had not assigned its interest hereunder. Bank may sell participations grant to one or more Persons banks or other institutions (each a "Participant") participating interests in or to all or a its portion of its rights and obligations under this Agreement; providedthe Loans. In the event of any such grant by a Bank of a participating interest to a Participant, however, that (i) Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations; its obligations hereunder, and (iii) the Borrower and the Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s 's rights and obligations hereunder.
(b) Any Bank may at any time assign to one or more banks or other institutions (each an "Assignee") all, or a proportionate part of all, of its rights and obligations under this Agreement and the other Loan Documents. Borrower agrees that each participant its Revolving Notes, and such Assignee shall be entitled assume rights and obligations, pursuant to the benefits of Sections 3(i) 3(j)an Assignment and Assumption Agree- ment executed by such Assignee and such Bank, 3(k) with and 4 (subject to the requirements consent of the Agent. Upon execution and limitations thereindelivery of such instrument and payment by such Assignee to such Bank of an amount equal to the purchase price agreed between such Bank and such Assignee, including the requirements under Sections 4(c) and (d) (it being understood that the documentation required under Sections 4(c) and (d) such Assignee shall be delivered a Bank Party to Bank)) to this Agreement and shall have all the same extent as if it had acquired its interest by assignment; provided that such participant shall not be entitled to receive any greater payment under Sections 3(i) 3(j), 3(k) and 4, with respect to any participation, than Bank would have been entitled to receive. If Bank sells any participations of its right rights and obligations under this Agreement of a Bank as set forth in such Assignment and Assumption Agreement, and such Bank shall be released from its obligations hereunder to a non-U.S. participantcorresponding extent, Bank shalland no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this Section, acting solely for this purpose as a non-fiduciary agent of new Revolving Note or Revolving Notes shall be issued by the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts .
(and stated interestc) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that Any Bank shall not have may at any obligation to disclose time assign all or any portion of the Participant Register (including the identity of any participant or any information relating its rights under this Agreement and its Revolving Notes to a participant’s interest Federal Reserve Bank. No such assignment shall release the transferor Bank from its obligations hereunder.
(d) The Borrower agrees to provide all assistance reasonably requested by a Bank to enable such Bank either to sell participations in any commitments, loans, letters or make assignments of credit or its other obligations information 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) portion of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and Bank shall treat each person whose name is recorded in the Participation Register Loans as the owner of such participation for all purposes of permitted by this Agreement notwithstanding any notice to the contrarySection 12.15.
Appears in 1 contract
Sources: Credit and Security Agreement (Winstar Communications Inc)
Assignment; Participations. (a) Borrower may not assign its rights or Obligations under this Agreement shall not, without the prior written consent of Bank. Bank the Lenders, be entitled to assign any Loan Document or any of its rights or Obligations thereunder to any other Person and any purported assignment thereof shall be deemed null and void and of no force or effect.
(b) Each Lender may at any time sell, transfer, negotiate or assign (a “Sale”) to one or pledge more Registered Entities or a Mexican Person (but excluding any entity which is a direct competitor of Borrower, Cone Denim LLC or their respective Affiliates) or a Mexican bank or Mexican financial institution (each an “Assignee”) all, or any ratable part of all, of such Lender’s Term Loans, Promissory Note and the other rights and Obligations of such Lender hereunder; provided, however, that the aggregate outstanding principal amount (determined as of the effective date of the applicable Assignment) of the Term Loans subject to any such Sale shall be in a minimum amount of $1,000,000, unless such Sale is of the assignor’s (together with its Affiliates) entire interest in the Term Loans or is made with the prior consent of the Borrower and the Agent. The parties to each such Sale shall execute and deliver to the Agent (which shall keep a copy thereof) an Assignment and payment by the Assignee of an assignment fee in the amount of $3,500 (unless waived by Agent in its sole discretion). Upon receipt of all the foregoing, 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. 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 and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement with have been assigned by it pursuant to such Assignment, relinquish its rights (except for those surviving the prior written consent of Borrower to any other party provided that the prior written consent payment in full of the Bank 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 not cease to be required a party hereto). Within five (5) Business Days after its receipt of notice from the Agent that a Lender has assigned all or part of its interest in the Term Loans, Borrower shall execute and deliver to the assigning Lender or the Assignee, as applicable, a new Promissory Note evidencing the Assignee’s assigned portion of the Term Loans and (i) if an Event the assigning Lender has retained a portion of Default under Section 9(a) or 9(h) the Term Loans, a replacement Promissory Note, in the principal amount of this Agreement has occurred and is continuing the portion of the Term Loans retained by the assigning Lender (such Promissory Note to be in exchange for, but not in payment of, the Promissory Note held by the assigning Lender), or (ii) if the assigning Lender assigns its entire interest in the Term Loans, such assignment is Lender shall deliver the original Promissory Note evidencing such Term Loans to an affiliate of Bank. Subject Borrower.
(c) In addition to the foregoing, all provisions contained other rights provided in this Agreement Section 11.11 each Lender may grant a security interest in, or otherwise assign as collateral, any document of its rights under this Agreement, whether now owned or agreement referred hereafter acquired (including rights to herein payments of principal or relating hereto shall inure interest on the Term 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 Bankthe holders of, its successors and assignssuch Lender’s Indebtedness or equity securities, and shall be binding upon Borrower, its successors and assignsby notice to the Agent; provided, however, that no assignee 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 (b) above), shall be entitled to a greater payment pursuant to Section 3(i) than Bank would have been entitled to receive if it had not assigned its interest hereunder. Bank may sell participations to one or more Persons in or to all or a portion any rights of such Lender hereunder and no such Lender shall be relieved of any of its rights obligations hereunder.
(d) Each Lender may at any time sell to any Person (other than a natural person or any Affiliate of Borrower) (a “Participant”) participating interests in such Lender’s Term Loans, and obligations under this Agreement; provided, however, that (i) Bank’s obligations under this Agreement shall remain unchanged, (ii) Bank shall remain solely responsible to the other parties hereto for the performance interests of such obligations; Lender hereunder and (iii) Borrower shall continue to deal solely and directly with Bank in connection with Bank’s rights and obligations under this Agreement and the other Loan Documents. Borrower agrees that each participant In the case of any such participation, the Participant shall be entitled to the benefits benefit of Sections 3(i) 3(j)2.12, 3(k) 2.14, 11.12, 11.13 and 4 (subject to 11.14 as though it also were a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the requirements and limitations thereinoccurrence of an Event of Default, including the requirements under Sections 4(c) and (d) (it being understood that the documentation required under Sections 4(c) and (d) each Participant shall be delivered deemed to Bank)) 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 had acquired its interest by assignment; provided that such participant shall not be entitled to receive any greater payment as if it were a Lender under Sections 3(ithis Agreement.
(e) 3(j)The Agent, 3(k) acting as agent of the Borrower solely for tax purposes and 4, solely with respect to any participationthe actions described in this Section 11.11(e), than Bank would have been entitled shall establish and maintain at its address referred to receive. If Bank sells any participations of its right and obligations under this Agreement to a non-U.S. participant, Bank shall, acting solely for this purpose in Section 11.2 (or at such other address as a non-fiduciary agent of the Agent may notify the Borrower, maintain ) (A) a register on which it enters the name and address record 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 ownership (the “Participant Register”); provided that Bank shall not have any obligation ) in which the Agent agrees to disclose all or any portion of register by book entry the Participant Register interests (including the identity of any participant or any information relating rights to a participant’s interest in any commitments, loans, letters of credit or its other obligations information 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(creceive payment hereunder) of the United States Treasury Regulations. The entries Agent and each Lender in the Participant Term Loans and any assignment of any such interest and (B) accounts in the Register in accordance with its usual practice in which it shall be conclusive absent manifest errorrecord (1) the names and addresses of the Lenders (and each change thereto pursuant to Section 11.11), (2) the amount of each Loan, (3) the LIBOR Period applicable to each Loan, (4) the amount of any principal or interest due and payable or paid, and Bank shall treat each person whose name is recorded in (5) any other payment received by the Participation Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice Agent from Borrower and its application to the contraryObligations.
Appears in 1 contract
Sources: Term Loan Agreement (International Textile Group Inc)
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Borrowers, the Administrative Agent, the Lenders, the Swingline Bank, the Issuing Bank and their respective successors and assigns, except that no Borrower may not assign or transfer its rights or Obligations under this Agreement obligations hereunder without the prior written approval of all the Lenders (and any attempted such assignment or transfer without such consent shall be null and void).
(b) After first obtaining the approval of the Administrative Agent, the Swingline Bank. , the Issuing Bank and (provided no Event of Default exists as a result of the commencement of a case with respect to the Parent under the Federal Bankruptcy Code or as a result of the commencement of a bankruptcy, insolvency, reorganization, receivership or similar proceeding with respect to either Foreign Subsidiary Borrower under Swiss or other foreign law) the Parent, which approval will not be unreasonably withheld, each Lender may at any time assign to one or pledge more banks, finance companies, insurance or other financial institutions all or a portion of its rights and obligations under this Agreement with (including all or a portion of its Revolving Credit Commitment and the prior written consent Syndicated Loans owing to it and its participations in Letters of Borrower to any other party provided that the prior written consent of the Bank shall not be required (i) if an Event of Default under Section 9(a) or 9(h) of this Agreement has occurred Credit and is continuing or (ii) if such assignment is to an affiliate of Bank. Subject to the foregoing, all provisions contained in this Agreement or any document or agreement referred to herein or relating hereto shall inure to the benefit of Bank, its successors and assigns, and shall be binding upon Borrower, its successors and assignsSwingline Loans); provided, however, that no assignee (i) each such assignment shall be entitled of a constant, and not a varying, percentage of the assigning Lender's rights and obligations under this Agreement and the assignment shall cover the same percentage of such Lender's Revolving Credit Commitment and Syndicated Loans and participations in Letters of Credit and in Swingline Loans; (ii) unless the Administrative Agent and the Parent otherwise consent or all the assigning Lender's Revolving Credit Commitment is being assigned to a greater payment an assignee, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the effective date of the Assignment and Assumption Agreement with respect to such assignment) shall in no event be less than Five Million Dollars ($5,000,000) and shall be an integral multiple of One Million Dollars ($1,000,000); (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its approval and acceptance, an Assignment and Assumption Agreement in substantially the form attached hereto as Exhibit E with such changes therein (if any) as the Administrative Agent may approve (the "Assignment and Assumption Agreement"); and (iv) the Administrative Agent shall receive from the assignor (or, in the case of an assignment pursuant to Section 3(i4.7, from the Parent) a processing fee of Five Thousand Dollars ($5,000). Without restricting the right of the Administrative Agent, the Swingline Bank, the Issuing Bank or (provided no Event of Default exists as a result of the commencement of a case with respect to the Parent under the Federal Bankruptcy Code or as a result of the commencement of a bankruptcy, insolvency, reorganization, receivership or similar proceeding with respect to either Foreign Subsidiary Borrower under Swiss or other foreign law) the Parent to reasonably object to any bank, finance company, insurance or other financial institution becoming an assignee of an interest of a Lender hereunder, each proposed assignee must be an existing Lender or a bank, finance company, insurance or other financial institution which (i) has (or, in the case of a bank which is a subsidiary, such bank's parent has) a rating of its senior unsecured debt obligations of not less than Bank would Baa-1 by Moody's Investors Service, Inc. o▇ ▇ ▇▇▇parable rating by a rating agency acceptable to the Administrative Agent and (ii) has total assets in excess of Ten Billion Dollars ($10,000,000,000). Upon such execution, delivery, approval and acceptance, and on the effective date specified in the applicable Assignment and Assumption Agreement, (a) the assignee thereunder shall become a party hereto and a "Lender" for purposes hereof and, to the extent that rights and obligations hereunder have been entitled assigned to receive it pursuant to such Assignment and Assumption Agreement, shall have the rights and obligations of a Lender hereunder and (b) the Lender-assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption Agreement, relinquish its rights (except under Article 4 and Section 12.3 in respect of the period prior to the effective date of such Assignment and Assumption) and be released from its obligations under this Agreement.
(c) By executing and delivering an Assignment and Assumption Agreement, the Lender-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 Assumption Agreement, 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 any other Facility Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Facility Document or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Parent or any Subsidiary or the performance or observance by the Parent or any Subsidiary of any of their respective obligations under any Facility Document or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 7.8(a) and (b) and such other Facility Documents and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption Agreement; (iv) such assignee will, independently and without reliance upon the 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; (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Facility Documents as are delegated to the Administrative Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain a copy of each Assignment and Assumption Agreement delivered to and accepted by it and shall record the names and addresses of each Lender and the Revolving Credit Commitment of, and principal amount of the Syndicated Loans owing to, and the amount of participations in Letters of Credit and in Swingline Loans of, such Lender from time to time. Each Borrower, the Administrative Agent and the Lenders may treat each Person whose name is so recorded as a Lender hereunder for all purposes of this Agreement. Such record shall be available for inspection by each Borrower and each Lender.
(e) Upon its receipt of an Assignment and Assumption Agreement executed by an assigning Lender and an assignee and consented to by the Parent (except that no such consent of the Parent shall be required if it had not an Event of Default exists as a result of the commencement of a case with respect to the Parent under the Federal Bankruptcy Code or as a result of the commencement of a bankruptcy, insolvency, reorganization, receivership or similar proceeding with respect to either Foreign Subsidiary Borrower under Swiss or other foreign law), the Swingline Bank and the Issuing Bank, the Administrative Agent shall, if such Assignment and Assumption Agreement has been properly completed and is in substantially the form of Exhibit E, (i) accept such Assignment and Assumption Agreement, (ii) record the information contained therein and (iii) give prompt notice thereof to the Parent (on behalf of itself and the Foreign Subsidiary Borrowers) and the Lenders. Upon request, each Borrower shall execute and deliver to the Administrative Agent appropriate promissory notes in favor of each assignee evidencing such assignee's Pro Rata Percentage of the Total Revolving Credit Commitment. If the Lender-assignor shall have assigned its interest hereunder. Bank entire Revolving Credit Commitment and Syndicated Loans, the original promissory notes evidencing such Revolving Credit Commitment and Syndicated Loans shall be cancelled and returned to the Parent (on behalf of itself or the applicable Foreign Subsidiary Borrower).
(f) Each Lender may sell participations to one or more Persons banks, finance companies, insurance or other financial institutions in or to all or a portion of its rights and obligations under this AgreementAgreement (including without limitation all or a portion of its Revolving Credit Commitment and the Syndicated Loans owing to it); provided, however, that (i) Bank’s such Lender's obligations under this Agreement (including without limitation its Revolving Credit Commitment and its participations in Letters of Credit) shall remain unchanged, (ii) Bank such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and , (iii) Borrower such participant shall have no rights under any of the Facility Documents, (iv) each Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with Bank such Lender in connection with Bank’s such Lender's rights and obligations under this Agreement and the other Loan Documents. Borrower agrees that each participant shall with regard to any and all payments to be entitled to the benefits of Sections 3(i) 3(j)made under this Agreement and its Notes, 3(k) and 4 (subject to the requirements and limitations therein, including the requirements under Sections 4(c) and (dv) (it being understood that the documentation required under Sections 4(c) and (d) shall be delivered to Bank)) to agreement executed by such Lender in favor of the same extent as if it had acquired its interest by assignment; provided that such participant shall not be entitled give the participant the right to receive require such Lender to take or omit to take any greater action hereunder except action directly relating to (i) the extension of a payment under Sections 3(i) 3(j), 3(k) and 4, date with respect to any participationportion of the principal of or interest on any amount outstanding hereunder allocated to such participant, than Bank would have been (ii) the reduction of the principal amount outstanding hereunder allocated to such participant or (iii) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive. If Bank sells receive under its agreement with such Lender.
(g) Each Borrower will use reasonable efforts to cooperate with the Administrative Agent and Lenders in connection with the assignment of interests under this Agreement or the sale of participations herein.
(h) No Lender shall be permitted to assign or sell all or any participations portion of its right rights and obligations under this Agreement to a non-U.S. participant, Bank shall, acting solely for this purpose as a non-fiduciary agent the Parent or any Affiliate of the Borrower, maintain a register on which it enters Parent.
(i) Any Lender that proposes to sell any assignment or participation hereunder may furnish any information concerning the name Parent and address of each participant and the principal amounts (and stated interest) of each participant’s interest its Affiliates in the Loans or other obligations under the Loan Documents possession of such Lender from time to time to assignees and participants (the “Participant Register”including prospective assignees and participants); provided that Bank such Lender shall not have require any obligation such prospective assignee or such participant (prospective or otherwise) to disclose agree in writing to maintain the confidentiality of such information, as provided in Section 12.14.
(j) In addition to the assignments and participations permitted under the foregoing provisions of this Section, any Lender may (without any need to comply with any of the formal or procedural requirements of this Section) assign and pledge all or any portion of the Participant Register its Revolving Credit Commitment and Loans to (including the identity i) any Affiliate of such Lender or (ii) any participant or any information relating Federal Reserve Bank as collateral security pursuant to a participant’s interest in any commitments, loans, letters of credit or its other obligations information 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) Regulation A of the United States Treasury RegulationsBoard of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank. The entries in No such assignment shall release the Participant Register shall be conclusive absent manifest error, and Bank shall treat each person whose name is recorded in the Participation Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contraryassigning Lender from its obligations hereunder.
Appears in 1 contract
Sources: Credit Agreement (Movado Group Inc)
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Borrowers, the Administrative Agent, the Lenders and their respective successors and assigns, except that no Borrower may not assign or transfer its rights or Obligations under this Agreement obligations hereunder without the prior written approval of all the Lenders (and any attempted such assignment or transfer without such consent shall be null and void).
(b) Each Lender may assign to one or more assignees all or a portion of Bank. Bank may at any time assign or pledge its rights and obligations under this Agreement (including all or a portion of its Revolving Credit Commitment and the Loans owing to it), with the prior written consent (such consent not to unreasonably withheld) of (i) the Administrative Agent and (ii) the Parent; provided that (x) no such consent of the Parent shall be required for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or if any Event of Default exists as a result of the commencement of a case with respect to the Parent under the U.S. Federal Bankruptcy Code or as a result of the commencement of a bankruptcy, insolvency, reorganization, receivership or similar proceeding with respect to either Borrower under Swiss or other foreign law, to any other party assignee and (y) the provisions of paragraph (g) below shall have been complied with. Assignments shall be subject to the following additional conditions:
(A) each such assignment shall be of a constant, and not a varying, percentage of the assigning Lender's rights and obligations under this Agreement and the assignment shall cover the same percentage of such Lender's Revolving Credit Commitment and Loans;
(B) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender's Commitment or Loans, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the effective date of the Assignment and Assumption Agreement with respect to such assignment) shall in no event be less than CHF 5,000,000 and shall be an integral multiple of CHF 1,000,000, unless the Administrative Agent and the Parent otherwise consent (provided that the prior written no such consent of the Bank Parent shall be required if any Event of Default exists as a result of the commencement of a case with respect to the Parent under the U.S. Federal Bankruptcy Code or as a result of the commencement of a bankruptcy, insolvency, reorganization, receivership or similar proceeding with respect to either Borrower under Swiss or other foreign law);
(C) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its approval and acceptance, an Assignment and Assumption Agreement;
(D) the Administrative Agent shall receive from the assignor (or, in the case of an assignment pursuant to Section 3.7, from the Parent) a processing fee of $3,500; and
(E) the assignee, if it shall not be required a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon such execution, delivery, approval and acceptance, and on the effective date specified in the applicable Assignment and Assumption Agreement, (a) the assignee thereunder shall become a party hereto and a "Lender" for purposes hereof and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption Agreement, shall have the rights and obligations of a Lender hereunder and (b) the Lender-assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption Agreement, relinquish its rights (except under Article 3 and Section 11.3 in respect of the period prior to the effective date of such Assignment and Assumption) and be released from its obligations under this Agreement.
(c) By executing and delivering an Assignment and Assumption Agreement, the Lender-assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) if an Event of Default under Section 9(a) other than as provided in such Assignment and Assumption Agreement, such assigning Lender makes no representation or 9(h) of this Agreement has occurred warranty and is continuing assumes no responsibility with respect to any statements, warranties or (ii) if such assignment is to an affiliate of Bank. Subject to the foregoing, all provisions contained representations made in or in connection with this Agreement or any other Facility Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Facility Document or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or agreement warranty and assumes no responsibility with respect to the financial condition of the Parent or any Subsidiary or the performance or observance by the Parent or any Subsidiary of any of their respective obligations under any Facility Document or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to herein in Section 6.8(a) and (b) and such other Facility Documents and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption Agreement; (iv) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or relating hereto any other Lender and based on such documents and information as it shall inure deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Facility Documents as are delegated to the benefit Administrative Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of Bank, its successors the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain a copy of each Assignment and assignsAssumption Agreement delivered to and accepted by it and shall record the names and addresses of each Lender and the Revolving Credit Commitment of, and principal amount of the Loans owing to such Lender from time to time. Each Borrower, the Administrative Agent and the Lenders may treat each Person whose name is so recorded as a Lender hereunder for all purposes of this Agreement, absent manifest error. Such record shall be binding upon Borrower, available for inspection by each Borrower and each Lender.
(e) Upon its successors receipt of an Assignment and assigns; provided, however, that no Assumption Agreement executed by an assigning Lender and an assignee and (to the extent required by this Section) consented to by the Parent and the Administrative Agent and the assignee's completed Administrative Questionnaire (unless the assignee shall already be entitled a Lender hereunder), the Administrative Agent shall, if such Assignment and Assumption Agreement has been properly completed, (i) accept such Assignment and Assumption Agreement, (ii) record the information contained therein and (iii) give prompt notice thereof to a greater payment pursuant the Borrowers and the Lenders. Upon request, each Borrower shall execute and deliver to Section 3(i) than Bank would the Administrative Agent appropriate promissory notes in favor of each assignee evidencing such assignee's Pro Rata Percentage of the Total Revolving Credit Commitment. If the Lender-assignor shall have been entitled to receive if it had not assigned its interest hereunder. Bank entire Revolving Credit Commitment and Loans, the original promissory notes evidencing such Revolving Credit Commitment and Loans shall be cancelled and returned to the applicable Borrower.
(f) Subject to paragraph (g) of this Section, each Lender may sell participations to one or more Persons banks, finance companies, insurance or other financial institutions in or to all or a portion of its rights and obligations under this AgreementAgreement (including without limitation all or a portion of its Revolving Credit Commitment and the Loans owing to it); provided, however, that (i) Bank’s such Lender's obligations under this Agreement (including without limitation its Revolving Credit Commitment) shall remain unchanged, (ii) Bank such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and , (iii) Borrower such participant shall have no rights under any of the Facility Documents, (iv) each Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with Bank such Lender in connection with Bank’s such Lender's rights and obligations under this Agreement and the other Loan Documents. Borrower agrees that each participant shall with regard to any and all payments to be entitled to the benefits of Sections 3(i) 3(j)made under this Agreement and its Notes, 3(k) and 4 (subject to the requirements and limitations therein, including the requirements under Sections 4(c) and (dv) (it being understood that the documentation required under Sections 4(c) and (d) shall be delivered to Bank)) to agreement executed by such Lender in favor of the same extent as if it had acquired its interest by assignment; provided that such participant shall not be entitled give the participant the right to receive require such Lender to take or omit to take any greater action hereunder except action directly relating to (i) the extension of a payment under Sections 3(i) 3(j), 3(k) and 4, date with respect to any participationportion of the principal of or interest on any amount outstanding hereunder allocated to such participant, than Bank would have been (ii) the reduction of the principal amount outstanding hereunder allocated to such participant or (iii) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receivereceive under its agreement with such Lender.
(g) Notwithstanding anything herein to the contrary, without the prior written consent of the Parent, no Lender shall effect any assignment of all or a portion of, or any sale of a participation in or entry into any sub-participation agreement (each a "transfer") with respect to, any Loan made to any Borrower if such transfer would result in more than five Lenders which are not Qualifying Banks. If Bank sells Each Lender further agrees that if in connection with any transfer by such Lender the proposed transferee is not a Qualifying Bank, such Lender shall give at least ten days' prior notice of such proposed transfer to the Parent and the Administrative Agent (which shall promptly notify each of the other Lenders). Any such purported assignment, participation or sub-participation that does not comply with the requirements of this paragraph (including the requirement for notice pursuant to the immediately preceding sentence) shall be null and void.
(h) Each Borrower will use reasonable efforts to cooperate with the Administrative Agent and Lenders in connection with the assignment of interests under this Agreement or the sale of participations herein.
(i) No Lender shall be permitted to assign or sell all or any portion of its right rights and obligations under this Agreement to a non-U.S. participant, Bank shall, acting solely for this purpose as a non-fiduciary agent the Parent or any Affiliate of the Borrower, maintain a register on which it enters Parent.
(j) Any Lender that proposes to sell any assignment or participation hereunder may furnish any information concerning the name Parent and address of each participant and the principal amounts (and stated interest) of each participant’s interest its Affiliates in the Loans or other obligations under the Loan Documents possession of such Lender from time to time to assignees and participants (the “Participant Register”including prospective assignees and participants); provided that Bank such Lender shall not have require any obligation such prospective assignee or such participant (prospective or otherwise) to disclose agree in writing to maintain the confidentiality of such information, as provided in Section 11.14.
(k) In addition to the assignments and participations permitted under the foregoing provisions of this Section, any Lender may at any time pledge or grant a security interest in all or any portion of the Participant Register (its rights under this Agreement to secure obligations of such Lender, including the identity without limitation any pledge or grant to secure obligations of any participant or any information relating such Lender to a participant’s interest in any commitmentsFederal Reserve Bank, loans, letters of credit or its other obligations information under any Loan Document) and this Section shall not apply to any person except to the extent such pledge or grant of a security interest; provided that no such disclosure is necessary to establish that pledge or grant of a security interest shall release a Lender from any of its obligations hereunder or substitute any such commitment, loan, letter of credit pledgee or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and Bank shall treat each person whose name is recorded in the Participation Register grantee for such Lender as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrarya party hereto.
Appears in 1 contract
Sources: Credit Agreement (Movado Group Inc)
Assignment; Participations. (a) This Agreement shall be binding upon, and shall inure to the benefit of, the Borrowers, the Administrative Agent, the Lenders, the Swingline Bank, the Issuing Bank and their respective successors and assigns, except that no Borrower may not assign or transfer its rights or Obligations under this Agreement obligations hereunder without the prior written approval of all the Lenders (and any attempted such assignment or transfer without such consent shall be null and void).
(b) Each Lender may assign to one or more assignees all or a portion of Bank. Bank may at any time assign or pledge its rights and obligations under this Agreement (including all or a portion of its Revolving Credit Commitment and the Syndicated Loans owing to it and its participations in Letters of Credit and in Swingline Loans), with the prior written consent (such consent not to unreasonably withheld) of (i) the Administrative Agent, the Swingline Bank and the Issuing Bank and (ii) the Parent; provided that (x) no such consent of the Parent shall be required for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or if any Event of Default exists as a result of the commencement of a case with respect to the Parent under the U.S. Federal Bankruptcy Code or as a result of the commencement of a bankruptcy, insolvency, reorganization, receivership or similar proceeding with respect to either Foreign Subsidiary Borrower under Swiss or other foreign law, to any other party assignee and (y) the provisions of paragraph (g) below shall have been complied with. Assignments shall be subject to the following additional conditions:
(A) each such assignment shall be of a constant, and not a varying, percentage of the assigning Lender's rights and obligations under this Agreement and the assignment shall cover the same percentage of such Lender's Revolving Credit Commitment and Syndicated Loans and participations in Letters of Credit and in Swingline Loans;
(B) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender's Commitment or Loans, the amount of the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the effective date of the Assignment and Assumption Agreement with respect to such assignment) shall in no event be less than $5,000,000 and shall be an integral multiple of $1,000,000, unless the Administrative Agent and the Parent otherwise consent (provided that the prior written no such consent of the Bank Parent shall be required if any Event of Default exists as a result of the commencement of a case with respect to the Parent under the U.S. Federal Bankruptcy Code or as a result of the commencement of a bankruptcy, insolvency, reorganization, receivership or similar proceeding with respect to either Foreign Subsidiary Borrower under Swiss or other foreign law);
(C) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its approval and acceptance, an Assignment and Assumption Agreement;
(D) the Administrative Agent shall receive from the assignor (or, in the case of an assignment pursuant to Section 4.7, from the Parent) a processing fee of $3,500; and 77
(E) the assignee, if it shall not be required a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon such execution, delivery, approval and acceptance, and on the effective date specified in the applicable Assignment and Assumption Agreement, (a) the assignee thereunder shall become a party hereto and a "Lender" for purposes hereof and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption Agreement, shall have the rights and obligations of a Lender hereunder and (b) the Lender-assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption Agreement, relinquish its rights (except under Article 4 and Section 12.3 in respect of the period prior to the effective date of such Assignment and Assumption) and be released from its obligations under this Agreement.
(c) By executing and delivering an Assignment and Assumption Agreement, the Lender-assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) if an Event of Default under Section 9(a) other than as provided in such Assignment and Assumption Agreement, such assigning Lender makes no representation or 9(h) of this Agreement has occurred warranty and is continuing assumes no responsibility with respect to any statements, warranties or (ii) if such assignment is to an affiliate of Bank. Subject to the foregoing, all provisions contained representations made in or in connection with this Agreement or any other Facility Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Facility Document or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or agreement warranty and assumes no responsibility with respect to the financial condition of the Parent or any Subsidiary or the performance or observance by the Parent or any Subsidiary of any of their respective obligations under any Facility Document or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to herein in Section 7.8(a) and (b) and such other Facility Documents and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption Agreement; (iv) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or relating hereto any other Lender and based on such documents and information as it shall inure deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Facility Documents as are delegated to the benefit Administrative Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of Bank, its successors the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain a copy of each Assignment and assignsAssumption Agreement delivered to and accepted by it and shall record the names and addresses of each Lender and the Revolving Credit Commitment of, and principal amount of the Syndicated Loans owing to, and the amount of participations in Letters of Credit and in Swingline Loans of, such Lender from time to time. Each Borrower, the Administrative Agent and the Lenders may treat each Person whose name is so recorded as a Lender hereunder for all purposes of this Agreement, absent manifest error. Such record shall be binding upon Borroweravailable for inspection by each Borrower and each Lender.
(e) Upon its receipt of an Assignment and Assumption Agreement executed by an assigning Lender and an assignee and (to the extent required by this Section) consented to by the Parent, its successors the Swingline Bank and assigns; provided, however, that no the Issuing Bank and the assignee's completed Administrative Questionnaire (unless the assignee shall already be entitled a Lender hereunder), the Administrative Agent shall, if such Assignment and Assumption Agreement has been properly completed, (i) accept such Assignment and Assumption Agreement, (ii) record the information contained therein and (iii) give prompt notice thereof to a greater payment pursuant the Parent (on behalf of itself and the Foreign Subsidiary Borrowers) and the Lenders. Upon request, each Borrower shall execute and deliver to Section 3(i) than Bank would the Administrative Agent appropriate promissory notes in favor of each assignee evidencing such assignee's Pro Rata Percentage of the Total Revolving Credit Commitment. If the Lender-assignor shall have been entitled to receive if it had not assigned its interest hereunder. Bank entire Revolving Credit Commitment and Syndicated Loans, the original promissory notes evidencing such Revolving Credit Commitment and Syndicated Loans shall be cancelled and returned to the Parent (on behalf of itself or the applicable Foreign Subsidiary Borrower).
(f) Subject to paragraph (g) of this Section, each Lender may sell participations to one or more Persons banks, finance companies, insurance or other financial institutions in or to all or a portion of its rights and obligations under this AgreementAgreement (including without limitation all or a portion of its Revolving Credit Commitment and the Syndicated Loans owing to it); provided, however, that (i) Bank’s such Lender's obligations under this Agreement (including without limitation its Revolving Credit Commitment and its participations in Letters of Credit) shall remain unchanged, (ii) Bank such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and , (iii) Borrower such participant shall have no rights under any of the Facility Documents, (iv) each Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with Bank such Lender in connection with Bank’s such Lender's rights and obligations under this Agreement and the other Loan Documents. Borrower agrees that each participant shall with regard to any and all payments to be entitled to the benefits of Sections 3(i) 3(j)made under this Agreement and its Notes, 3(k) and 4 (subject to the requirements and limitations therein, including the requirements under Sections 4(c) and (dv) (it being understood that the documentation required under Sections 4(c) and (d) shall be delivered to Bank)) to agreement executed by such Lender in favor of the same extent as if it had acquired its interest by assignment; provided that such participant shall not be entitled give the participant the right to receive require such Lender to take or omit to take any greater action hereunder except action directly relating to (i) the extension of a payment under Sections 3(i) 3(j), 3(k) and 4, date with respect to any participationportion of the principal of or interest on any amount outstanding hereunder allocated to such participant, than Bank would have been (ii) the reduction of the principal amount outstanding hereunder allocated to such participant or (iii) the reduction of the rate of interest payable on such amount or any amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receivereceive under its agreement with such Lender.
(g) Notwithstanding anything herein to the contrary, without the prior written consent of the Parent, no Lender shall effect any assignment of all or a portion of, or any sale of a participation in or entry into any sub-participation agreement (each a "transfer") with respect to, any Syndicated Loan made to any Foreign Subsidiary Borrower if such transfer would result in more than five Lenders which are not Qualifying Banks. If Bank sells Each Lender further agrees that if in connection with any transfer by such Lender the proposed transferee is not a Qualifying Bank, such Lender shall give at least ten days' prior notice of such proposed transfer to the Parent and the Administrative Agent (which shall promptly notify each of the other Lenders). Any such purported assignment, participation or sub-participation that does not comply with the requirements of this paragraph (including the requirement for notice pursuant to the immediately preceding sentence) shall be null and void.
(h) Each Borrower will use reasonable efforts to cooperate with the Administrative Agent and Lenders in connection with the assignment of interests under this Agreement or the sale of participations herein.
(i) No Lender shall be permitted to assign or sell all or any portion of its right rights and obligations under this Agreement to a non-U.S. participant, Bank shall, acting solely for this purpose as a non-fiduciary agent the Parent or any Affiliate of the Borrower, maintain a register on which it enters Parent.
(j) Any Lender that proposes to sell any assignment or participation hereunder may furnish any information concerning the name Parent and address of each participant and the principal amounts (and stated interest) of each participant’s interest its Affiliates in the Loans or other obligations under the Loan Documents possession of such Lender from time to time to assignees and participants (the “Participant Register”including prospective assignees and participants); provided that Bank such Lender shall not have require any obligation such prospective assignee or such participant (prospective or otherwise) to disclose agree in writing to maintain the confidentiality of such information, as provided in Section 12.14.
(k) In addition to the assignments and participations permitted under the foregoing provisions of this Section, any Lender may at any time pledge or grant a security interest in all or any portion of the Participant Register (its rights under this Agreement to secure obligations of such Lender, including the identity without limitation any pledge or grant to secure obligations of any participant or any information relating such Lender to a participant’s interest in any commitmentsFederal Reserve Bank, loans, letters of credit or its other obligations information under any Loan Document) and this Section shall not apply to any person except to the extent such pledge or grant of a security interest; provided that no such disclosure is necessary to establish that pledge or grant of a security interest shall release a Lender from any of its obligations hereunder or substitute any such commitment, loan, letter of credit pledgee or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and Bank shall treat each person whose name is recorded in the Participation Register grantee for such Lender as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrarya party hereto.
Appears in 1 contract
Sources: Credit Agreement (Movado Group Inc)
Assignment; Participations. Borrower (a) The Company may not assign its rights or Obligations under this Agreement without the prior written consent of BankAgreement. Each Bank may at any time assign or pledge its rights and obligations under this Agreement with the prior written consent of Borrower to any other party provided that the prior written consent of the Bank shall not be required (i) if an Event of Default under Section 9(a) or 9(h) of this Agreement has occurred and is continuing or (ii) if such assignment is to an affiliate of Bank. Subject to the foregoing, all provisions contained in this Agreement or any document or agreement referred to herein or relating hereto shall inure to the benefit of Bank, its successors and assigns, and shall be binding upon Borrower, its successors and assigns; provided, however, that no assignee shall be entitled to a greater payment pursuant to Section 3(i) than Bank would have been entitled to receive if it had not assigned its interest hereunder. Bank may sell participations to one or more Persons in or to other financial institutions all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Loans, its Notes, and its Commitment); provided, however, that:
(i) except in the case of an assignment to another Bank or an Affiliate of such Bank, any such assignment shall require the prior written approval of the Agent and the Company (such approval not to be unreasonably withheld or delayed), provided that the Company's consent is not required during the existence and continuation of an Event of Default;
(ii) except in the case of an assignment to another Bank or an Affiliate of such Bank or an assignment of all of a Bank's rights and obligations under this Agreement, any such partial assignment shall be in an amount at least equal to $5,000,000 (or, if less, the remaining amount of the Commitment being assigned by such Bank) and an integral multiple of $500,000 in excess thereof;
(iii) each such assignment by a Bank shall be of a constant, and not varying, percentage of all of its rights and obligations under this Agreement and the Notes; and
(iv) the parties to such assignment shall deliver to the Agent for its acceptance a processing fee from the assignor of $3,500. Upon execution, delivery, and acceptance of such assignment, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, rights, and benefits of a Bank hereunder and the assigning Bank shall, to the extent of such assignment, relinquish its rights and be released from its obligations under this Agreement. Upon the consummation of any assignment pursuant to this Section 9.10(a), the assignor, the Agent and the Company shall make appropriate arrangements so that, if required, new Notes are issued to the assignor and the assignee.
(b) Each Bank may sell participations to one or more Persons in all or a portion of its rights, obligations or rights and obligations under this Agreement (including all or a portion of its Commitment, its Notes and its Loans); provided, however, that (i) such Bank’s 's obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations; and , (iii) Borrower the participant shall be entitled to the benefit of the yield protection provisions contained in Article II, inclusive, and the right of set-off contained in Section 2.19, and (iv) the Company shall continue to deal solely and directly with such Bank in connection with such Bank’s 's rights and obligations under this Agreement Agreement, and such Bank shall retain the other Loan Documents. Borrower agrees that each participant shall be entitled sole right to enforce the benefits of Sections 3(i) 3(j), 3(k) and 4 (subject to the requirements and limitations therein, including the requirements under Sections 4(c) and (d) (it being understood that the documentation required under Sections 4(c) and (d) shall be delivered to Bank)) to the same extent as if it had acquired its interest by assignment; provided that such participant shall not be entitled to receive any greater payment under Sections 3(i) 3(j), 3(k) and 4, with respect to any participation, than Bank would have been entitled to receive. If Bank sells any participations of its right and obligations under this Agreement to a non-U.S. participant, Bank shall, acting solely for this purpose as a non-fiduciary agent of the BorrowerCompany relating to its Loans and its Notes and to approve any amendment, 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 modification, or other obligations under the Loan Documents (the “Participant Register”); provided that Bank shall not have any obligation to disclose all or any portion of the Participant Register (including the identity waiver of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations information under any Loan Document) to any person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and Bank shall treat each person whose name is recorded in the Participation Register as the owner of such participation for all purposes provision of this Agreement notwithstanding (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is payable on such Loans or Notes, extending any notice scheduled principal payment date or date fixed for the payment of interest on such Loans or Notes, or extending its Commitment).
(c) Any Bank may furnish any information concerning the Company in the possession of such Bank from time to the contrarytime to assignees and participants (including prospective assignees and participants).
Appears in 1 contract
Sources: Credit Agreement (Plexus Corp)