Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder. (b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. (e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance. (f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law). (g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period. (h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 3 contracts
Sources: Credit Agreement (Exelon Corp), Credit Agreement (Exelon Corp), Credit Agreement (Exelon Corp)
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender maymay assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not be unreasonably withheld or delayed)) of:
(A) Borrower; provided, that no consent of Borrower shall be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) Agent, Swing Lender, and if demanded by the Borrower pursuant to Section 8.07(gIssuing Lender.
(ii) Assignments shall be subject to the extent required by such Sectionfollowing additional conditions:
(A) no assignment may be made (i) so long as no Event of Default has occurred and is continuing, assign to one a Competitor, or more banks (ii) to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party,
(C) the amount of the Commitments and the other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignmentassignment is delivered to Agent) shall be in no event be less than a minimum amount (unless waived by Agent) of $10,000,000 or5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, if lessan Affiliate of any Lender, the entire amount or a Related Fund of such Lender’s CommitmentLender or (II) a group of new Lenders, and shall each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be an integral multiple of assigned to all such new Lenders is at least $1,000,000 or such Lender’s entire Commitment, 5,000,000);
(iiiD) each such partial assignment shall be to made as an Eligible Assignee, assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement;
(ivE) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, Agent an Assignment and Acceptance; provided, that Borrower and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee; the Assignment and Acceptance shall include a processing representation and recordation fee of $3,500 warranty (which shall be payable by one or more expressly for the benefit of the parties Lender Group) that, as of the date of the assignment, it does not have any material non-public information with respect to Parent or its Subsidiaries that (I) has not been disclosed to the Assignment Lenders (other than Lenders that do not wish to receive material non-public information with respect to Parent or its Subsidiaries) prior to such time and Acceptance(II) could not reasonably be expected to have a material effect upon, and not or otherwise be material, to a Lender's decision to participate in any assignment pursuant to this Section 13.1.
(F) unless waived by Agent, the Borrower (except assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the case amount of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and $3,500; and
(vG) the consent of assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from "Administrative Questionnaire").
(b) From and after the effective date specified in each that Agent receives the executed Assignment and AcceptanceAcceptance and, if applicable, payment of the required processing fee, (xi) the assignee 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, shall be a "Lender" and shall have the rights and obligations of a Lender hereunder under the Loan Documents, and (yii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from its any future obligations under this Agreement and, (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this AgreementAgreement and the other Loan Documents, such Lender shall cease to be a party hereto (although an and thereto); provided, that nothing contained herein shall release any assigning Lender shall continue to be entitled to indemnification pursuant to from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 8.04(c15 and Section 17.9(a)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the assignee 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 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 or any other instrument or document Loan 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 any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; , (iii) such assignee Assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender 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 confirms that it is an Eligible Assignee; (vi) such assignee Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agent, by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; , and (viivi) such assignee 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.
(cd) The Administrative 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 Immediately upon Agent's receipt of the names required processing fee, if applicable, and addresses delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Lenders Assignee and the Commitment Amount of, and principal amount resulting adjustment of the Advances owing to, each Lender from time to time (the “Register”)Commitments arising therefrom. The entries Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Register shall be conclusive and binding for all purposesor any portion of its Obligations, absent manifest errorits Commitment, and the Borrowerother rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as Originating Lender shall remain a Lender hereunder "Lender" for all purposes of this Agreement. The Register shall be available for inspection by Agreement and the Borrower or any Lender at any reasonable time other Loan Documents and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneethe Participant receiving the participating interest in the Obligations, the Administrative Agent shallCommitments, if such Assignment and Acceptance has been completed the other rights and is in substantially interests of the form of Exhibit A, (i) accept such Assignment Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) such Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such the Originating Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative Agent Agent, and the other Lenders shall continue to deal solely and directly with such the Originating Lender in connection with such the Originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, (iv) such no Lender shall retain transfer or grant any participating interest under which the sole Participant has the right to approveapprove any amendment to, without the or any consent of any Participant, any amendment, modification or waiver of with respect to, this Agreement or any provision of this Agreementother Loan Document, other than any except to the extent such amendmentamendment to, modification or consent or waiver with respect to this Agreement or of any Advance or Commitment other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant has an is participating, (B) reduce the interest that forgives principalrate applicable to the Obligations hereunder 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 Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment Participant through such Lender (other than a waiver of principal ofdefault interest), or (E) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) all amounts payable by Borrower 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 or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor 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 Advance Participant participates and no Participant shall have any rights under this Agreement or releases the other Loan Documents or any substantial portion direct rights as to the other Lenders, Agent, Borrower, the Collateral, or otherwise in respect of collateral, if any, securing any such Advancethe Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) Any Lender may, in In connection with any such assignment or participation or proposed assignment or participation pursuant or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to this the provisions of Section 8.0717.9, disclose to the assignee all documents and information which it now or participant or proposed assignee or participant, any information hereafter may have relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process Parent and other requirements of law)its Subsidiaries and their respective businesses.
(g) If Any other provision in this Agreement notwithstanding, any Lender (i) shall make demand for payment may at any time create a security interest in, or pledge, all or any portion of its rights under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver and interest in this Agreement in favor of any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign Federal Reserve Bank in accordance with this Section 8.07 to one Regulation A of the Federal Reserve Bank or more Eligible Assignees designated by the Borrower U.S. Treasury Regulation 31 CFR §203.24, and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation Federal Reserve Bank may enforce such pledge or security interest in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodmanner permitted under applicable law.
(h) Notwithstanding anything Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name and address of each Lender as the registered owner of the Revolver Commitments (and the principal amount thereof and stated interest thereon) held by such Lender (each, a "Registered Loan"). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolver Commitments to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the contrary contained hereindesignated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolver Commitments to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(i) In the event that a “Granting Bank”Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may grant to be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(j) Agent shall make a special purpose funding vehicle copy of the Register (an “SPC”), identified as such and each Lender shall make a copy of its Participant Register in writing the extent it has one) available for review by Borrower from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the as Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCreasonably request.
Appears in 3 contracts
Sources: Credit Agreement (PROS Holdings, Inc.), Credit Agreement (PROS Holdings, Inc.), Credit Agreement (PROS Holdings, Inc.)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) the Borrower (unless an Event of Default shall have occurred and be continuing), each LC Issuing Bank (if the assignment increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding)) and the Administrative Agent shall have consented to such assignment (in each case, with each such consent not to be unreasonably withheld or delayed) by signing the Assignment and Acceptance referred to in clause (iv) below; (ii) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, ; (iiiii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 (or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, the total amount of the assigning Lender's Commitment); (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any promissory notes held by the assigning Lender and a processing and recordation fee of $3,500 (which shall be payable by one or more plus an amount equal to out-of-pocket legal expenses of the parties to the Assignment and AcceptanceAdministrative Agent, and not estimated by the Borrower (except in the case of a demand under Section 8.07(gAdministrative Agent and advised to such parties)), and shall not be payable if the assignee is a Federal Reserve Bank), ; and (v) the consent of assignee thereunder, if it is not a Lender, shall deliver to the Borrower shall not be required after Administrative Agent an administrative questionnaire in a form supplied by the occurrence and during the continuance of any Event of DefaultAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender hereto) but shall continue to be entitled to indemnification pursuant the benefits of Sections 2.12, 2.15 and 8.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section 8.04(c))8.07. Notwithstanding anything to the contrary contained in this Section 8.07(a) to the contraryAgreement, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, time may assign all or any part portion of its rights and obligations under this Agreement to any Lender, any Affiliate of a Federal Reserve Bank, provided that no such Lender or any Approved Fund of any Lender. No assignment shall release be made to (i) the transferor Lender from Borrower or any of its obligations hereunderthe Borrower's Affiliates or subsidiaries or to (ii) a natural person.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 The Administrative Agent, such assigning Lender or any other Lender and based on such documents and information acting solely for this purpose 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent Borrower, 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(dc) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneeassignee, together with any promissory notes held by the assigning Lender, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AB 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.
(ed) Each Lender may at any time sell participations to one or more banks banks, financial institutions or other entities (other than a natural person or the Borrower or any of the Borrower's Affiliates or subsidiaries) (each, a “"Participant”") in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) such Lender’s 's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the maker of any such Advance for all purposes of this Agreement and (iv) the Borrower, the Administrative Agent Agent, the LC Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (iv) Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to approve, without the consent of any Participant, enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, other than without the consent of the Participant, agree to any such amendment, modification or waiver with respect to any Advance the provision in Section 8.01 relating to amendments, waivers or Commitment in which consents requiring unanimous consent of the Lenders that affects such Participant. Subject to the following paragraph, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.12 and 2.15 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.05 as though it were a Lender, provided such Participant has an interest that forgives principal, interest or fees or reduces agrees to be subject to Section 2.16 as though it were a Lender. A Participant shall not be entitled to receive any greater payment under Sections 2.12 and 2.15 than the interest rate or fees payable applicable Lender would have been entitled to receive with respect to any the participation sold to such Advance or CommitmentParticipant, postpones any date fixed unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.15 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for any regularly scheduled payment the benefit of principal ofthe Borrower, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advanceto comply with Section 2.15(d) as though it were a Lender.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(ge) If any Lender (i) shall make any demand for payment under Section 2.11(a)2.12 or 2.15, 2.11(b) or 2.14, (ii) if any Lender shall deliver be the subject of any notice to the Administrative Agent pursuant to notification or assertion of illegality under Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders2.13, then (in the case of clause (i)) within 60 30 days after any such demand (if, but only if, such demanded payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) notification or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may beassertion, the Borrower may may, with the approval of the Administrative Agent and the LC Issuing Banks (which approval shall not be unreasonably withheld) and provided that no Event of Default or event that, with the giving of notice or lapse of time or both, would constitute an Event of Default, shall then have occurred and be continuing, demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, 's Commitment and the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 daysperiod ending on the later to occur of such 30th day and the last day of the longest of the then current Interest Periods for such Advances; provided, however, that the Borrower shall pay to the Administrative Agent the $3,500 administrative fee payable pursuant to clause (iv) of subsection (a) above if such assignee is not a Lender immediately prior to such assignment. If any such Eligible Assignee assignee designated by the Borrower and approved by the Administrative Agent shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee assignees acceptable to the Administrative Agent for all or part of such Lender’s Commitment, Advances and participation in Facility LCs's Commitment or Advances, then such demand by the Borrower shall become ineffective; it being understood for purposes of this subsection (e) that such assignment shall be conclusively deemed to be on terms acceptable to such Lender, and such Lender may shall be compelled to consummate such assignment to a financial institution designated by the Borrower and reasonably acceptable to the Administrative Agent and each LC Issuing Bank, if such financial institution (but A) shall agree to such assignment by entering into an Assignment and Acceptance with such Lender and (B) shall offer compensation to such Lender in an amount equal to all amounts then owing by the Borrower to such Lender hereunder, whether for principal, interest, fees, costs or expenses (other than the demanded payment referred to above and payable by the Borrower as a condition to the Borrower's right to demand such assignment), or otherwise. In addition, in the event that the Borrower shall be entitled to demand the replacement of any Lender pursuant to this subsection (e), the Borrower may, in the case of any such Lender, with the approval of the Administrative Agent (which approval shall not be required tounreasonably withheld) assign and provided that no Event of Default or event that, with the giving of notice or lapse of time or both, would constitute an Event of Default, shall then have occurred and be continuing, terminate all (but not less than all) such Lender's Commitment and prepay all (but not less than all) such Lender's Advances not so assigned, together with all interest accrued thereon to the date of such prepayment and all fees, costs and expenses and other amounts then owing by the Borrower to such Lender hereunder, at any time from and after such later occurring day in accordance with Sections 2.05 and 2.11 hereof (but without the requirement stated therein for ratable treatment of the other Lenders), if and only if, after giving effect to such termination and prepayment, the sum of the aggregate principal amount of the Advances of all Lenders then outstanding does not exceed the then remaining Commitments of the Lenders. Notwithstanding anything set forth above in this subsection (e) to the contrary, the Borrower shall not be entitled to compel the assignment by any Lender demanding payment under Section 2.12(a) of its Commitment and Advances or terminate and prepay the Commitment and Advances of such Lender if, prior to or promptly following any other Eligible Assignee such demand by the Borrower, such Lender shall have changed or shall change, as the case may be, its Applicable Lending Office for its Eurodollar Rate Advances so as to eliminate the further incurrence of such increased cost. In furtherance of the foregoing, any such Lender demanding payment or giving notice as provided above agrees to use reasonable efforts to so change its Applicable Lending Office if, to do so, would not result in accordance with the incurrence by such Lender of additional costs or expenses which it deems material or, in the sole judgment of such Lender, be inadvisable for regulatory, competitive or internal management reasons.
(f) Anything in this Section 8.07 during to the contrary notwithstanding, any Lender may assign and pledge all or any portion of its Commitment and the Advances owing to it to any Federal Reserve Bank (and its transferees) as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such periodFederal Reserve Bank. No such assignment shall release the assigning Lender from its obligations hereunder.
(hg) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Bank”Lender") may grant to a special purpose funding vehicle (an “"SPC”), ") of such Granting Lender identified as such in writing from time to time by the Granting Bank Lender to the Administrative Agent Agent, the LC Issuing Banks and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank 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 such SPC to make any Advance, (ii) if an such SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank Lender shall be obligated to make such Advance pursuant to the terms hereofhereof and (iii) no SPC or Granting Lender shall be entitled to receive any greater amount pursuant to Section 2.12 or 8.04(b) than the Granting Lender would have been entitled to receive had the Granting Lender not otherwise granted such SPC the option to provide any Advance to the Borrower. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank Lender to the same extent, and as if, such Advance were made by such Granting BankLender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with a Lender would otherwise be liable so long as, and to the extent that, the related Granting Bank)Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, against or join any other person in instituting against, against such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. Notwithstanding the foregoing, the Granting Lender unconditionally agrees to indemnify the Borrower, the LC Issuing Banks, the Administrative Agent and each Lender against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be incurred by or asserted against the Borrower, the LC Issuing Banks, the Administrative Agent or such Lender, as the case may be, in any way relating to or arising as a consequence of any such forbearance or delay in the initiation of any such proceeding against its SPC. Each party hereto hereby acknowledges and agrees that no SPC shall have the rights of a Lender hereunder, such rights being retained by the applicable Granting Lender. Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPC shall have any voting rights hereunder and that the voting rights attributable to any Advance made by an SPC shall be exercised only by the relevant Granting Lender and that each Granting Lender shall serve as the administrative agent and attorney-in-fact for its SPC and shall on behalf of its SPC receive any and all payments made for the benefit of such SPC and take all actions hereunder to the extent, if any, such SPC shall have any rights hereunder. In addition, notwithstanding anything to the contrary contained in this Section 8.07, Agreement any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying of any processing fee thereforother party hereto, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.or
Appears in 3 contracts
Sources: Credit Agreement (Entergy Gulf States Inc), Credit Agreement (Entergy Gulf States Inc), Credit Agreement (Entergy Gulf States Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event be less than $10,000,000 5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AcceptanceAssumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and AcceptanceAssumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AcceptanceAssumption, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Acceptance Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, . For 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible AssigneeSection 8.07(a), the Administrative Agent shall, if such Assignment terms “Approved Fund” and Acceptance has been completed and is in substantially “Ineligible Institution” have the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.following meanings:
Appears in 3 contracts
Sources: Credit Agreement (Baltimore Gas & Electric Co), Credit Agreement (Baltimore Gas & Electric Co), Credit Agreement (Baltimore Gas & Electric Co)
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower Company (following a demand by such Lender pursuant to Section 8.07(g2.11 or 2.14) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAgent, will assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Revolving Credit Commitment, its Term Commitment, its undrawn Letter of Credit Commitment, the Advances owing to it it, its participations in Letters of Credit and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under and in respect of one or more of the assigning Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of (iix) the Revolving Credit Commitment Amount or Term Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 5,000,000 or an integral multiple of $1,000,000 or in excess thereof and (y) the undrawn Letter of Credit Commitment of the assigning Lender being assigned pursuant to each such Lender’s entire Commitmentassignment (determined as of the date of the applicable Assignment and Acceptance) shall in no event be less than $1,000,000, unless, in each case, the Company and the Agent agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Company pursuant to this Section 9.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Company pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 (which payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Company, such recordation fee shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (Company except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), and shall not be payable if an assignment made at the assignee request of the Company to an Eligible Assignee that is a Federal Reserve Bank)an existing Lender, and (vvii) any Lender may, without the consent approval of the Borrower shall not be required after Company and the occurrence and during the continuance Agent, assign all or a portion of its rights to any Event of Defaultits Affiliates. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (other than its rights under Section 2.11, 2.14 and 9.04 to the extent any claim thereunder relates to an event arising prior such assignment) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 any Borrower or the performance or observance by the any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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 Company.
(d) The Administrative Agent shall maintain at its address referred to in Section 8.02 9.02 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Company or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than the Company or any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitments to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the Borrowerholder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Note, other than or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate extent subject to such participation, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advanceparticipation.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower Company furnished to such Lender by or on behalf of the BorrowerCompany; provided 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 Confidential Information relating to the Borrower Company received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Lender.
(g) If Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation any Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment Regulation A of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance Board of Governors of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCFederal Reserve System.
Appears in 3 contracts
Sources: Credit Agreement (Lubrizol Corp), Credit Agreement (Lubrizol Corp), Credit Agreement (Lubrizol Corp)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement the Loan Documents (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes (if any) held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s 's rights and obligations under this Agreementthe Loan Documents, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Lender Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire lesser of the amount of such Lender’s Commitment, 's then remaining Commitment and shall be an integral $5,000,000 or any whole multiple of $1,000,000 or in excess thereof (except in the case of assignments between Lenders at the time already parties hereto and between a Lender and an Affiliate of such Lender’s entire Commitment), (iii) each the Agent, the LC Issuing Bank and, so long as no Event of Default shall have occurred and be continuing, the Borrower, shall have consented to such assignment shall (in each case, which may not be to an Eligible Assigneeunreasonably withheld or delayed), and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptancea Lender Assignment, together with any Note or Notes (if any) subject to such assignment and a processing and recordation fee of $3,500 3,500. Promptly following its receipt of such Lender Assignment, Note or Notes (which if any) and fee, the Agent shall be payable by one or more of the parties to the accept and record such Lender Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultRegister. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AcceptanceLender Assignment, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AcceptanceLender Assignment, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceLender Assignment, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an a Lender Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)hereto). Notwithstanding anything to the contrary contained in this Section 8.07(a) to the contraryAgreement, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of with notice to the Borrower, any the Agent and the LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executedIssuing Bank, assign all or any part portion of its rights under this Agreement the Advances owing to it to any other Lender or any Affiliate of a Federal Reserve BankLender. No such assignment, provided that no such assignment other than to an Eligible Assignee, a Lender or an Affiliate of a Lender, shall release the transferor assigning Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptancea Lender Assignment, 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 AcceptanceLender Assignment, 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 any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (iii) such assignee confirms that it has received a copy of this Agreementeach Loan Document, together with copies of the financial statements referred to in Section 4.01(e4.01(f) hereof 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 AcceptanceLender Assignment; (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 Agreementthe Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) 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 the Loan Documents as are delegated to the Administrative Agent by the terms hereofthereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement the Loan Documents are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Lender Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an a Lender Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes (if any) subject to such assignment, the Administrative Agent shall, if such Lender Assignment and Acceptance has been completed and is in substantially the form of Exhibit A8.07 hereto, (i) accept such Assignment and AcceptanceLender Assignment, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks banks, financial institutions or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement the Loan Documents (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes (if any) held by it); provided provided, however, that (i) such Lender’s 's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note (if any) for all purposes of this Agreement, and (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree agree, in accordance with the terms of Section 8.08, to preserve the confidentiality of any confidential information Confidential Information relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Lender.
(g) If any Lender (or any bank, financial institution, or other entity to which such Lender has sold a participation) shall (i) shall make any demand for payment under Section 2.11(a), 2.11(b) 2.08 or 2.14, 2.12 or (ii) shall deliver any give notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders2.13, then (in the case of clause (i)) within 60 30 days after any such demand or occurrence (if, but only if, such in the case of any demanded payment demanded under Section 2.11(adescribed in clause (i), 2.11(b) or 2.14 such demanded payment has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may may, with the approval of the Agent and the LC Issuing Bank (which approval shall not be unreasonably withheld), and provided that no Event of Default or Unmatured Default shall then have occurred and be continuing, demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, 's Commitment and the Advances owing to it and its participation within the period ending on the later to occur of (x) the last day in the Facility LCs 30-day period described above and all (y) the last day of its other rights and obligations hereunder within the next succeeding 30 dayslongest of the then-current Interest Periods for such Advances. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee Assignees for all or part of such Lender’s Commitment, Advances and participation in Facility LCs's Commitment or Advances, then such demand by the Borrower shall become ineffective; it being understood for purposes of this subsection (g) that such assignment shall be conclusively deemed to be on terms acceptable to such Lender, and such Lender may (but shall not be required to) assign compelled to consummate such Commitment and Advances assignment to any other an Eligible Assignee designated by the Borrower, if such Eligible Assignee (1) shall agree to such assignment by entering into a Lender Assignment with such Lender and (2) shall offer compensation to such Lender in accordance with this Section 8.07 during an amount equal to all amounts then owing by the Borrower to such periodLender hereunder, whether for principal, interest, fees, costs or expenses (other than the demanded payment referred to above and payable by the Borrower as a condition to the Borrower's right to demand such assignment), or otherwise.
(h) Anything in this Section 8.07 to the contrary notwithstanding, any Lender may assign and pledge all or any portion of its Commitment and the Advances owing to it to any Federal Reserve Bank (and its transferees) as collateral security pursuant to Regulation A of the 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 Lender from its obligations hereunder.
(i) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”"GRANTING LENDER") may grant to a special purpose funding vehicle (an “"SPC”), ") of such Granting Lender identified as such in writing from time to time by the Granting Bank Lender to the Administrative Agent Agent, the LC Issuing Bank and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank 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 such SPC to make any Advance, (ii) if an such SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank Lender shall be obligated to make such Advance pursuant to the terms hereofhereof and (iii) no SPC or Granting Lender shall be entitled to receive any greater amount pursuant to Section 2.12 or 8.04(b) than the Granting Lender would have been entitled to receive had the Granting Lender not otherwise granted such SPC the option to provide any Advance to the Borrower. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank Lender to the same extent, and as if, such Advance were made by such Granting BankLender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with a Lender would otherwise be liable so long as, and to the extent that, the related Granting Bank)Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, against or join any other person in instituting against, against such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. Notwithstanding the foregoing, the Granting Lender unconditionally agrees to indemnify the Borrower, the LC Issuing Bank, the Agent and each Lender against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be incurred by or asserted against the Borrower, the LC Issuing Bank, the Agent or such Lender, as the case may be, in any way relating to or arising as a consequence of any such forbearance or delay in the initiation of any such proceeding against its SPC. Each party hereto hereby acknowledges and agrees that no SPC shall have the rights of a Lender hereunder, such rights being retained by the applicable Granting Lender. Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPC shall have any voting rights hereunder and that the voting rights attributable to any Advance made by an SPC shall be exercised only by the relevant Granting Lender and that each Granting Lender shall serve as the administrative agent and attorney-in-fact for its SPC and shall on behalf of its SPC receive any and all payments made for the benefit of such SPC and take all actions hereunder to the extent, if any, such SPC shall have any rights hereunder. In addition, notwithstanding anything to the contrary contained in this Section 8.07, Agreement any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying of any processing fee thereforother party hereto, assign all or a portion of its interests interest in any Advance Advances to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances Lender 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 8.07(h8.07(i) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the prior written consent of each Granting Lender, all or any part of whose Advance is being funded by an SPC at the time of such Granting Bank or SPCamendment.
Appears in 3 contracts
Sources: Credit Agreement (Alliant Energy Corp), Credit Agreement (Interstate Power & Light Co), Credit Agreement (Wisconsin Power & Light Co)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each the LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 500,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 100,000 or such Lender▇▇▇▇▇▇’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultDefault under Section 6.01(a), Section 6.01(c)(i) (with respect to a breach of Section 5.02(c) only) or Section 6.01(e) and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers Issuer and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any the LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.;
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement, Credit Agreement
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded following a demand by the Borrower such Lender pursuant to Section 8.07(g2.10 or 2.12) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionPaying Agent, will assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more Facilities, (ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event be less than $10,000,000 or1,000,000 (or such lesser amount as shall be approved by the Paying Agent and, if lessso long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentBorrower), (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Paying Agent, for its acceptance (other than as to assignments to then existing Lenders and/or their Affiliates) and recording in the Register, an Assignment and AcceptanceAssumption, together with any Note or Notes subject to such assignment and together with a processing and recordation fee in the amount of $3,500 3,500; provided, however, that the processing and recordation fee set forth in sub-clause (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and iv) above shall not be payable if (A) with respect to an assignment by any Lender Party to an Affiliate or an Approved Fund of such Lender Party, or (B) with respect to an assignment (x) which is both by and to an existing Lender Party or (y) with a stated effective date occurring prior to the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required 90th day after the occurrence and during the continuance of any Event of Default. Effective Date hereof.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AcceptanceAssumption, (xi) 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 AcceptanceAssumption, have the rights and obligations of a Lender or an Issuing Bank, as the case may be, hereunder and (yii) the Lender or an Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or of the remaining portion of an assigning Lender’s or an Issuing Bank’s rights and obligations under this Agreement, such Lender or such Issuing Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and AcceptanceAssumption, the each Lender Party assignor thereunder and the each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and AcceptanceAssumption, such assigning Lender Party 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 any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of this Agreement any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant heretothereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (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(e) 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 AcceptanceAssumption; (iv) such assignee will, independently and without reliance upon the Administrative any 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 Administrative each Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative such Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a LenderLender or an Issuing Bank, as the case may be.
(cd) The Administrative Paying Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders Lender Parties and the Commitment Amount under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the “Register”). In addition, the Paying Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance Assumption executed by an assigning Lender Party and an assignee representing that it is an Eligible Assigneeassignee, together with any Note or Notes subject to such assignment, the Administrative Paying Agent shall, if such Assignment and Acceptance Assumption has been completed and is in substantially the form of Exhibit AC hereto, (i) accept such Assignment and AcceptanceAssumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Paying 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 each Facility pursuant to such Assignment and Assumption and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such 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 Assumption and shall otherwise be in substantially the form of Exhibit A hereto.
(ef) Each Issuing Bank may assign to an Eligible Assignee all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that each such assignment shall be to an Eligible Assignee and the parties to each such assignment shall execute and deliver to the Paying Agent, for its acceptance and recording in the Register, an Assignment and Assumption.
(g) Each Lender Party may sell participations to one or more banks or Persons (other entities (eachthan a natural person, a “Participant”Defaulting Lender or any Loan Party or any of Affiliates thereof) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes (if any) held by it); provided provided, however, that (i) such LenderLender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent Agents and the other Lenders Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such LenderLender Party’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this Agreementany Loan Document, other than or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate or fees payable with respect extent subject to any such Advance or Commitmentparticipation, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation, or Commitment, extends any Commitment, releases any guarantor release all or substantially all of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethe Collateral.
(fh) 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, participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided 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 relating to the Borrower Confidential Information received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Party.
(gi) If 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 (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Facility LCs and all Board of Governors of the Federal Reserve System.
(j) No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, or (B) to any Defaulting Lender or any of its other Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person.
(k) In connection with any assignment of rights and obligations hereunder within of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the next succeeding 30 days. If any other conditions thereto set forth herein, the parties to the assignment shall make such Eligible Assignee designated additional payments to the Paying Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the Borrower shall fail to consummate such assignment on terms acceptable to such Lenderassignee of participations or subparticipations, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitmentother compensating actions, Advances and participation in Facility LCsincluding funding, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance consent of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent Paying Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and without paying any processing fee thereforassignor hereby irrevocably consent), assign to (x) pay and satisfy in full all or a portion of its interests in any Advance payment liabilities then owed by such Defaulting Lender to the Granting Bank Paying Agent or to any financial institution Lender hereunder (consented to by and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Advances and purchases of Letters of Credit Advances and Swing Line Advances in accordance with its Pro Rata Share. Notwithstanding the Borrower foregoing, in the event that any assignment of rights and Administrative Agentobligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, which consents then the assignee of such interest shall be unreasonably withheld or delayed) providing liquidity and/or credit support deemed to or be a Defaulting Lender for the account all purposes of this Agreement until 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCcompliance occurs.
Appears in 2 contracts
Sources: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of Exelon, the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the a Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and it, its participation in Facility LCsLCs and any Note or Notes held by it); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative 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 processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))any Borrower, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower Exelon shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the BorrowerExelon, the LC Issuers Issuer and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of Exelon, the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement and any Note to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 any Borrower or the performance or observance by the any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing by each Borrower to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the each Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the any Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with all Notes, if any, subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerBorrowers.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and it, its participation in Facility LCsLCs and any Note or Notes held by it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the Borrowerholder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this AgreementAgreement or any Note held by such Lender, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 Borrowers furnished to such Lender by or on behalf of the BorrowerBorrowers; provided 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 relating to the Borrower Borrowers received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) any Lender shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, or (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority LendersRate Advances, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the applicable Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower Borrowers may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower Borrowers and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower Borrowers shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower Borrowers shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the BorrowerBorrowers, the option to provide to the any Borrower all or any part of any Advance that such Granting Bank 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 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance Advances to the Granting Bank or to any financial institution institutions (consented to by the such Borrower and Administrative Agent, neither of which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 2 contracts
Sources: Credit Agreement (Commonwealth Edison Co), Credit Agreement (Exelon Corp)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gsubsection (g) hereof shall to the extent required by such Sectionsubsection (g), assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances Loan owing to it and its participation in Facility LCsany Note held by it); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the aggregate amount of the Loan and remaining Commitment Amount (if any) of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Loan and remaining Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Loan and remaining Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 4,000 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))Borrower, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer Borrower or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement and any Note to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances Loan owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it its Loan and its participation in Facility LCsany Note held by it); provided that (i) such Lender’s obligations under this Agreement (including its Commitment (if any)) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this AgreementAgreement or any Note held by such Lender, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) any Lender shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, 2.14 or (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority LendersRate Advances, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) ), or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, Commitment (if any) and the Advances Loan owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCsCommitment or Loan, then such Lender may (but shall not be required to) assign such Commitment and Advances Loan to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting BankLender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank 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 Bank 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 Commitment of the Granting Bank Lender to the same extent, and as if, such Advance were made by such Granting BankLender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting BankLender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance Advances to the Granting Bank Lender or to any financial institution institutions (consented to by the Borrower and Administrative Agent, neither of which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank Lender or an SPC without the written consent of such Granting Bank Lender or SPC.
Appears in 2 contracts
Sources: Term Loan Agreement (Exelon Corp), Term Loan Agreement (Exelon Corp)
Assignments and Participations. (a) Each Lender maymay sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder (including all of its rights and obligations with respect to the Term Loans, the Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitments, such assignment (A) shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment and (B) shall be subject to the prior written consent of the BorrowerAdministrative Agent, each LC the Issuer and the Administrative Agent Swing Loan Lender (which consents consent, in each case, shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the assigning Lender’s entire interest) be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 1,000,000 or an integral multiple of $1,000,000 in excess thereof (treating multiple, simultaneous assignments by or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one two or more Approved Funds which are Affiliates or share the same (or affiliated) manager or advisor as a single assignment for purposes of the parties to the Assignment and Acceptance, and not by the Borrower this clause (except in the case of a demand under Section 8.07(ga)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 andexcept, 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contraryeither case, (A) with the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent or (B) if such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender and without paying any processing fee therefor(iii) if such Eligible Assignee is not, assign all or a portion of its interests in any Advance prior to the Granting Bank date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to any financial institution (consented to by A) the Borrower and prior consent of the Administrative Agent, Agent (which consents consent shall not be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.and
Appears in 2 contracts
Sources: Credit Agreement (Knology Inc), Credit Agreement (Knology Inc)
Assignments and Participations. (a) Each This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender mayand their respective successors and assigns; provided, with however, that none of the Loan Parties may assign or transfer any of its rights hereunder without the prior written consent of each Lender and any such assignment without the Borrower, each LC Issuer Lenders' prior written consent shall be null and the Administrative Agent void.
(which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gb) shall to the extent required by such Section, Each Lender may assign to one or more banks other lenders or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitments and the Advances owing to it and its participation in Facility LCsLoans made by it); provided provided, however, that (i) each such assignment shall be of is in an amount which is at least $3,000,000 or a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s entire 's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (x) an Affiliate of such Lender or a Related Fund of such Lender or (y) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $3,000,000 or a multiple of $1,000,000 in excess thereof), (iii) each such assignment shall be to an Eligible Assignee, (ivii) the parties to each such assignment shall execute and deliver to the Administrative Collateral Agent, for its acceptance and recording in the Registeracceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower 3,000 (except in the case payment of a demand under Section 8.07(g)), and such fee shall not be payable if required in connection with an assignment by a Lender to an Affiliate of such Lender or Related Fund of such Lender), (iii) except as provided in Section 11.07(b), (iv), any such assignment shall be made with the assignee is a Federal Reserve Bank)written consent of, and prior notice to, (x) the Collateral Agent, and (y) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower, which consent of the Collateral Agent and the Borrower shall not be unreasonably withheld, and (v) the no written consent of or prior notice to the Collateral Agent or the Borrower shall not be required after the occurrence and during the continuance in connection with any assignment by a Lender to an Affiliate of any Event such Lender or a Related Fund of Defaultsuch Lender. Upon such execution, delivery, acceptance delivery and recordingacceptance, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least three Business Days after the delivery thereof to the Collateral Agent (xor such shorter period as shall be agreed to by the Collateral Agent and the parties to such assignment), (A) the assignee thereunder shall be become a party hereto "Lender" hereunder and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder Acceptance and (yB) the assigning 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)hereto). Notwithstanding anything contained to the contrary in this Section 8.07(a) to 11.07(b), a Lender may assign any or all of its rights under the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender Loan Documents to an Affiliate of such Lender or to another a Related Fund of such Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have delivering an Assignment and Acceptance executedto the Collateral Agent; provided, assign all that (x) the Borrower and the Agents may continue to deal solely and directly with such assigning Lender in connection with the interest so assigned until such Lender and its assignee shall have executed and delivered an Assignment and Acceptance to the Collateral Agent for recordation and (y) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Collateral Agent or any part other Person shall not affect the legality, validity or binding effect of such assignment. Unless the Borrower shall otherwise consent in writing, Silver Point and/or its rights under this Agreement to a Federal Reserve Bank, provided that no Related Funds' Pro Rata Share (as defined in clause (c) of the definition of such assignment term) shall release the transferor Lender from any of its obligations hereunderequal or exceed 51% at all times.
(bc) By executing and delivering an Assignment and Acceptance, the assigning 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 Acceptance, such the 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 Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or any of its Subsidiaries or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agentassigning Lender, such assigning Lender any Agent 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 AgreementAgreement and the other Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent Agents to take such action as agent agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agents by the terms hereofhereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (viivi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(cd) The Administrative Collateral Agent shall maintain shall, on behalf of the Borrower, maintain, or cause to be maintained at its address referred to in Section 8.02 the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Commitment Amount Commitments of, and principal amount of the Advances Loans (the "Registered Loans") owing to, to each Lender from time to time (time. Other than in connection with an assignment by a Lender to an Affiliate of such Lender or a Related Fund of such Lender, the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders may shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or and any Lender at any reasonable time and from time to time upon reasonable prior notice. In the case of any assignment by a Lender to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender shall maintain a comparable register.
(de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneeassignee, together with any promissory notes subject to such assignment, the Administrative Collateral Agent shall, if the Collateral Agent (and the Borrower, if applicable) consents to such assignment and if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, Acceptance and (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerRegister.
(ef) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary.
(g) In the event that any Lender sells participations in a Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(h) Any foreign Person who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.08(d).
(i) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender's obligations under this Agreement (including all or a portion of without limitation, its Commitment, Commitments hereunder) and the Advances owing to it and its participation in Facility LCs); provided that (i) such Lender’s obligations under this Agreement other Loan Documents shall remain unchanged, ; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) and the Borrower, the Administrative Agent Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents; and (iviii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 9.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall retain be entitled to the sole right benefits of Section 2.08 and Section 3.05 of this Agreement with respect to approveits participation in any portion of the Commitments and the Loans as if it was a Lender.
(j) In the event (i) any Lender delivers to the Borrower any notice in accordance with Section 2.08(c), without the 2.09(d), or 3.05(b), (ii) any Lender defaults in its obligations to fund a Revolving Loan pursuant to this Agreement, or (iii) any Lender (a "Non-Consenting Lender") refuses to consent of any Participant, any to an amendment, modification or waiver of any provision this Agreement that, pursuant to Section 11.02, requires the consent of this Agreementall of the Lenders or all of the Lenders directly affected thereby, other than any such and which amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Required Lenders, then, provided that no Default or Event of Default has occurred and is continuing at such time, the Borrower may, at its own expense (such expense to include any transfer fee payable to the Collateral Agent under Section 11.07(b)), require such Lender to transfer and Administrative assign in whole or in part, without recourse (in accordance with and subject to the terms and conditions of Section 11.07), all or part of its interests, rights and obligations under this Agreement to any assignee which shall assume such assigned obligations, provided that (A) such assignee shall be acceptable to the Collateral Agent, which consents (B) such assignment shall be unreasonably withheld not conflict with any law, rule or delayedregulation or order of any court or other Governmental Authority, (C) providing liquidity and/or credit support the Borrower or such assignee shall have paid to or for the account assigning Lender in immediately available funds the principal of and interest accrued to the date of such SPC payment on the Loans made by it hereunder and all other amounts owed to support the funding it hereunder (including, without limitation, any amounts owing pursuant to Section 2.08(c), 2.09(d), or maintenance of Advances 3.05(b)) and (iiD) disclose on in the event such Lender is a confidential basis any nonNon-public information relating to its Advances to any rating agencyConsenting Lender, commercial paper dealer or provider of any suretyeach assignee shall consent, guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without at the written consent time of such Granting Bank or SPCassignment, to each matter in respect of which such Lender was a Non-Consenting Lender and the Borrower also requires each other Lender that is a Non-Consenting Lender to assign its interests, rights and obligations under this Section 11.07(j).
Appears in 2 contracts
Sources: Financing Agreement (Xanodyne Pharmaceuticals Inc), Financing Agreement (Xanodyne Pharmaceuticals Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent (unless such assignment is to an Affiliate of such Lender, in which case no such consent, and only notice to the Borrower, shall be required) of the Administrative Agent, the Borrower (unless a Default shall have occurred and be continuing) and each LC Issuer and the Administrative Agent Issuing Bank (which consents shall not be unreasonably withheld or delayedwithheld), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall to be payable by one or more of the parties to the Assignment and Acceptance, and not paid by the Borrower (except assigning Lender or, in the case of a demand under an assignment pursuant to Section 8.07(g)8.07(i), and shall not be payable if the assignee is a Federal Reserve BankBorrower), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, accept such Assignment and Acceptance, record the information contained therein in the Register and forward a copy thereof to the Borrower.
(d) The Administrative 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 Lenders and and, the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Borrower, the Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment written notice to the Borrower and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shallAgent, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and/or obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment and the Advances) without the consent of the Borrower, the Advances owing to it and its participation in Facility LCs)Administrative Agent or any Lender; provided provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) no Lender shall be entitled to receive any greater amount pursuant to Section 2.14 or 2.17 than such Lender shall retain would have been entitled to receive had such Lender not sold such participation. No Lender may grant to any holder of a participation in the sole rights and obligations of such Lender hereunder the right to approve, without the consent of require such Lender to take or omit to take any Participant, any amendment, modification or waiver of any provision of action under this Agreement, other than any except that such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect Lender may grant to any such Advance holder the right to require such holder’s consent to (i) reduce the principal of or Commitmentinterest on the outstanding Borrowings or the fees or other amounts payable to such Lender hereunder, postpones (ii) postpone any date fixed for any regularly scheduled payment of principal of, of or interest on the outstanding Borrowings or the fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished payable to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances hereunder or (iii) does not consent permit the Borrower to an amendment or waiver that requires assign any of its obligations under this Agreement to any other Person. Each holder of a participation in any rights and obligations under this Agreement, if and to the consent extent the applicable participation agreement so provides, shall, with respect to such participation, be entitled to all of all Lenders the rights of a Lender as fully as though it were a Lender under Sections 2.10(c), 2.14, 2.17 8.01, 8.04(b) and has been approved by 8.04(c) (subject to any conditions imposed on each Lender hereunder with respect thereto, including delivery of the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded forms and certificates required under Section 2.11(a2.17(e)); provided, 2.11(bhowever, that no holder of a participation shall be entitled to any amounts that would otherwise be payable to it with respect to its participation under Section 2.14(a) or 2.14 has been made by the Borrower2.17 unless (x) or (such amounts are payable in the case respect of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days a Regulatory Change enacted after the date a draft of the applicable amendment participation agreement was executed or waiver was delivered (y) such amounts would have been payable to the Lender that granted such Lenderparticipation if such participation had not been granted. Each Lender selling or granting a participation shall indemnify the Borrower and the Administrative Agent for any liabilities for Taxes that the Borrower or the Administrative Agent, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) might incur as a result of such Lender’s Commitment, the Advances owing failure to it withhold and pay any Taxes applicable to payments by such Lender to its participation participant in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all respect of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodparticipation.
(hf) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting BankLender”) may grant to a special purpose funding vehicle (an “SPCSPV”), ) of such Granting Lender identified as such in writing from time to time by the Granting Bank Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank 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 such SPV to make any Advance, (ii) if an SPC such SPV elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank Lender shall be obligated to make such Advance pursuant to the terms hereofhereof and (iii) no SPV or Granting Lender shall be entitled to receive any greater amount pursuant to Section 2.10(c), 2.14 or 2.17 than the Granting Lender would have been entitled to receive had the Granting Lender not otherwise granted such SPV the option to provide any Advance to the Borrower. The making of an Advance by an SPC SPV hereunder shall utilize the Commitment of the Granting Bank Lender to the same extent, and as if, such Advance were made by such Granting BankLender. Each party hereto hereby agrees that no SPC SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with a Lender would otherwise be liable so long as, and to the extent that, the related Granting Bank)Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPCSPV, it will not institute against, against or join any other person Person in instituting against, against such SPC SPV any bankruptcy, reorganization, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. Notwithstanding the foregoing, the Granting Lender unconditionally agrees to indemnify the Borrower, the Administrative Agent and each Lender against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be incurred by or asserted against the Borrower, the Administrative Agent or such Lender, as the case may be, in any way relating to or arising as a consequence of any such forbearance or delay in the initiation of any such proceeding against its SPV. Each party hereto hereby acknowledges and agrees that no SPV shall have the rights of a Lender hereunder, such rights being retained by the applicable Granting Lender. Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPV shall have any voting rights hereunder and that the voting rights attributable to any Advance made by an SPV shall be exercised only by the relevant Granting Lender and that each Granting Lender shall serve as the administrative agent and attorney-in-fact for its SPV and shall on behalf of its SPV receive any and all payments made for the benefit of such SPV and take all actions hereunder to the extent, if any, such SPV shall have any rights hereunder. In addition, notwithstanding anything to the contrary contained in this Section 8.07, Agreement any SPC SPV may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying of any processing fee thereforother party hereto, assign all or a portion of its interests interest in any Advance Advances to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances Lender and (ii) in accordance with Section 8.08, disclose on a confidential basis any non-public information Confidential 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 SPCSPV. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the prior written consent of each Granting Lender, all or any part of whose Advance is being funded by an SPV at the time of such Granting amendment.
(g) Any Lender may, in connection with any assignment, designation, participation or grant to an SPV or proposed assignment, designation, participation or grant to an SPV pursuant to this Section 8.07, disclose to the assignee, designee or participant or proposed assignee, designee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee, designee or participant or proposed assignee, designee or participant shall agree to preserve the confidentiality of any Confidential Information relating to the Borrower received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(i) In the event that any Lender, or SPCany participant of such Lender pursuant to Section 8.07(e), shall have delivered a notice or certificate pursuant to Section 2.15, or the Borrower shall be required to make additional payments to any Lender under Section 2.10(c), 2.14 or 2.17, or any Lender shall be a Declining Lender, the Borrower shall have the right, at its own expense, upon notice to such Lender, to require such Lender to transfer and assign without recourse (in accordance with and subject to the restrictions contained in this Section 8.07) all such Lender’s interests, rights and obligations under this Agreement to another Eligible Assignee identified by the Borrower and approved by the Administrative Agent and each LC Issuing Bank (which approval shall not be unreasonably withheld), which financial institution shall assume such obligations of such Lender for consideration equal to the outstanding principal amount of such Lender’s Advances, and if satisfactory arrangements are made for the payment to such Lender of interest and fees accrued hereunder to the date of such transfer and all other amounts payable hereunder to such Lender on or prior to the date of such transfer; provided that (i) no Default shall have occurred and be continuing, (ii) no such assignment shall conflict with any law, rule or regulation or order of any governmental authority and (iii) the Borrower shall have paid to the assignor in immediately available funds on or prior to the date of such assignment all amounts accrued for the account of such Lender or owed to it under Section 2.10(c), 2.14 or 2.17.
Appears in 2 contracts
Sources: Credit Agreement (American Electric Power Co Inc), Credit Agreement (American Electric Power Co Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent (unless such assignment is to a Lender or a wholly-owned Affiliate of such Lender, in which case only the consent, not to be unreasonably delayed, of the Borrower, Swingline Bank and each LC Issuer Issuing Bank and notice to the Borrower and the Administrative Agent Agent, shall be required) of the Administrative Agent, the Swingline Bank, the Borrower (unless a Default shall have occurred and be continuing) and each LC Issuing Bank (which consents shall not be unreasonably withheld or delayed)delayed and, and if demanded by in the case of the Borrower, the Borrower pursuant shall be deemed to Section 8.07(g) have consented to any such assignment unless it shall object thereto by written notice to the extent required by Administrative Agent within ten Business Days after having received notice of such Sectionproposed assignment), assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AcceptanceAssumption, together with a processing and recordation fee of $3,500 (which shall to be payable by one or more of the parties to the Assignment and Acceptance, and not paid by the Borrower (except assigning Lender or, in the case of a demand under an assignment pursuant to Section 8.07(g)8.07(i), and shall not be payable if the assignee is a Federal Reserve BankBorrower), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AcceptanceAssumption, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and AcceptanceAssumption, 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 AcceptanceAssumption, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms it has full power and authority, and has taken all action necessary, to execute and deliver such Assignment and Assumption and to consummate the transactions contemplated thereby and to become a Lender under this Agreement, (ii) such assignee confirms that it is an “Eligible Assignee”, (iii) such assignee confirms that it is sophisticated with respect to decisions to acquire assets of the type represented by the rights and obligations assigned to it under such Assignment and Assumption and either it, or the person exercising discretion in making its decision to acquire such rights and obligations, is experienced in acquiring assets of such type, (iv) it has received a copy of this Agreement, together with and has received or has been accorded the opportunity to receive copies of the most recent financial statements referred delivered pursuant to in Section 4.01(e5.01(i)(i) and (ii), as applicable, and such other documents and information as it has deemed deems appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; Assumption and to purchase the rights and obligations assigned thereunder, and (ivv) such assignee willit has, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into the Assignment and Assumption and to purchase the rights and obligations assigned thereunder; (vi) such assignee agrees that it will, independently and without reliance on 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a LenderLender and (viii) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto.
(c) Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, accept such Assignment and Assumption, record the information contained therein in the Register and forward a copy thereof to the Borrower.
(d) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and and, the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Borrower, the Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment written notice to the Borrower and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shallAgent, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and/or obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment and the Advances) without the consent of the Borrower, the Advances owing to it and its participation in Facility LCs)Administrative Agent, the Swingline Bank, any LC Issuing Bank or any Lender; provided provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative Agent Agent, the Swingline Bank, the LC Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) no Lender shall be entitled to receive any greater amount pursuant to Section 2.15 or 2.18 than such Lender shall retain would have been entitled to receive had such Lender not sold such participation. No Lender may grant to any holder of a participation in the sole rights and obligations of such Lender hereunder the right to approve, without the consent of require such Lender to take or omit to take any Participant, any amendment, modification or waiver of any provision of action under this Agreement, other than any except that such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect Lender may grant to any such Advance holder the right to require such holder’s consent to (i) reduce the principal of or Commitmentinterest on the outstanding Borrowings or the fees or other amounts payable to such Lender hereunder, postpones (ii) postpone any date fixed for any regularly scheduled payment of principal of, of or interest on the outstanding Borrowings or the fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished payable to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances hereunder or (iii) does not consent permit the Borrower to an amendment or waiver that requires assign any of its obligations under this Agreement to any other Person. Each holder of a participation in any rights and obligations under this Agreement, if and to the consent extent the applicable participation agreement so provides, shall, with respect to such participation, be entitled to all of all Lenders the rights of a Lender as fully as though it were a Lender under Sections 2.11(c), 2.15, 2.18 8.01, 8.04(b) and has been approved by 8.04(c) (subject to any conditions imposed on each Lender hereunder with respect thereto, including delivery of the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded forms and certificates required under Section 2.11(a2.18(e)); provided, 2.11(bhowever, that no holder of a participation shall be entitled to any amounts that would otherwise be payable to it with respect to its participation under Section 2.15(a) or 2.14 has been made by the Borrower2.18 unless (x) or (such amounts are payable in the case respect of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days a Regulatory Change enacted after the date a draft of the applicable amendment participation agreement was executed or waiver was delivered (y) such amounts would have been payable to the Lender that granted such Lenderparticipation if such participation had not been granted. Each Lender selling or granting a participation shall indemnify the Borrower and the Administrative Agent for any liabilities for Taxes that the Borrower or the Administrative Agent, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) might incur as a result of such Lender’s Commitment, the Advances owing failure to it withhold and pay any Taxes applicable to payments by such Lender to its participation participant in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all respect of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodparticipation.
(hf) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting BankLender”) may grant to a special purpose funding vehicle (an “SPCSPV”), ) of such Granting Lender identified as such in writing from time to time by the Granting Bank Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank 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 such SPV to make any Advance, (ii) if an SPC such SPV elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank Lender shall be obligated to make such Advance pursuant to the terms hereofhereof and (iii) no SPV or Granting Lender shall be entitled to receive any greater amount pursuant to Section 2.11(c), 2.15 or 2.18 than the Granting Lender would have been entitled to receive had the Granting Lender not otherwise granted such SPV the option to provide any Advance to the Borrower. The making of an Advance by an SPC SPV hereunder shall utilize the Commitment of the Granting Bank Lender to the same extent, and as if, such Advance were made by such Granting BankLender. Each party hereto hereby agrees that no SPC SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with a Lender would otherwise be liable so long as, and to the extent that, the related Granting Bank)Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPCSPV, it will not institute against, against or join any other person Person in instituting against, against such SPC SPV any bankruptcy, reorganization, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. Notwithstanding the foregoing, the Granting Lender unconditionally agrees to indemnify the Borrower, the Administrative Agent and each Lender against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be incurred by or asserted against the Borrower, the Administrative Agent or such Lender, as the case may be, in any way relating to or arising as a consequence of any such forbearance or delay in the initiation of any such proceeding against its SPV. Each party hereto hereby acknowledges and agrees that no SPV shall have the rights of a Lender hereunder, such rights being retained by the applicable Granting Lender. Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPV shall have any voting rights hereunder and that the voting rights attributable to any Advance made by an SPV shall be exercised only by the relevant Granting Lender and that each Granting Lender shall serve as the administrative agent and attorney-in-fact for its SPV and shall on behalf of its SPV receive any and all payments made for the benefit of such SPV and take all actions hereunder to the extent, if any, such SPV shall have any rights hereunder. In addition, notwithstanding anything to the contrary contained in this Section 8.07, Agreement any SPC SPV may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying of any processing fee thereforother party hereto, assign all or a portion of its interests interest in any Advance Advances to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances Lender and (ii) in accordance with Section 8.08, disclose on a confidential basis any non-public information Confidential 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 SPCSPV. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the prior written consent of each Granting Lender, all or any part of whose Advance is being funded by an SPV at the time of such Granting amendment.
(g) Any Lender may, in connection with any assignment, designation, participation or grant to an SPV or proposed assignment, designation, participation or grant to an SPV pursuant to this Section 8.07, disclose to the assignee, designee or participant or proposed assignee, designee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee, designee or participant or proposed assignee, designee or participant shall agree to preserve the confidentiality of any Confidential Information relating to the Borrower received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time, without the consent of the Borrower, any LC Issuing Bank, the Swingline Bank or SPCthe Administrative Agent, create a security interest in all or any portion of its rights under this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(i) In the event that any Lender, or any participant of such Lender pursuant to Section 8.07(e), shall have delivered a notice or certificate pursuant to Section 2.16, or the Borrower shall be required to make additional payments to any Lender under Section 2.11(c), 2.15 or 2.18, or any Lender shall be a Declining Lender or a Defaulting Lender, the Borrower shall have the right, at its own expense, upon notice to such Lender, to require such Lender to transfer and assign without recourse (in accordance with and subject to the restrictions contained in this Section 8.07) all such Lender’s interests, rights and obligations under this Agreement to another Eligible Assignee identified by the
Appears in 2 contracts
Sources: Credit Agreement (American Electric Power Co Inc), Credit Agreement (American Electric Power Co Inc)
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g2.22(b) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAgent, will assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it it, its interest in any outstanding Letters of Credit and its participation in Facility LCsSwing Line Advances and the Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 5,000,000 or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof unless the Borrower and the Agent otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) the Swing Line Commitment and all outstanding Swing Line Advances may only be assigned in their entirety to a Lender then having a Commitment, and (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AcceptanceAssumption, together with any Revolving Credit Note or Swing Line Note subject to such assignment and a processing and recordation fee of $3,500 (which payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), and shall not be payable if an assignment made at the assignee is a Federal Reserve Bank), and (v) the consent request of the Borrower shall not be required after the occurrence and during the continuance of any Event of Defaultto an Eligible Assignee that is an existing Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AcceptanceAssumption, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (other than its rights under Sections 2.12, 2.15 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering Upon its receipt of an Assignment and Acceptance, 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 Acceptance, such Assumption executed by an 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such an assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms representing that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with any Note or Notes subject to such powers as are reasonably incidental thereto; assignment, the Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (viiiii) such assignee agrees that it will perform in accordance with their terms all of give prompt notice thereof to the obligations which by the terms of this Agreement are required to be performed by it as a LenderBorrower.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assumption Agreement and each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder and its participation obligations to the Issuing Lenders and the Swing Line Lender hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent Agent, the Issuing Lenders and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Note, other than or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate extent subject to such participation, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance or Commitmentparticipation. The applicable Lender, extends any Commitmentacting solely for this purpose as an agent of the Borrower, releases any guarantor shall maintain a register for the recordation of any the names and addresses of each participant to which such Advance or releases any substantial portion Lender has sold a participating interest and the amount of collateraleach such participant’s interest in such Lender’s rights and/or obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, if anyand such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of the related rights and/or obligations, securing any such Advancesubject to the provisions of this Section.
(fe) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 Borrower Information relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Lender.
(gf) If Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation any Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment Regulation A of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance Board of Governors of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCFederal Reserve System.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Ugi Utilities Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each the LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 500,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 100,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultDefault under Section 6.01(a), Section 6.01(c)(i) (with respect to a breach of Section 5.02(c) only) or Section 6.01(e) and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers Issuer and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any the LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.;
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement
Assignments and Participations. (a) Each Lender maySubject to the EKN General Conditions, with the prior approval of EKN and the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents which, in the case of the Administrative Agent, shall not be unreasonably withheld or delayedwithheld), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, each Lender may assign to one or more banks or other entities (including any trust or other Person in connection with a securitization or monetization of the Advances or other indirect raising of capital) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that 125
(i) each such assignment of any Commitments shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of all Commitments;
(ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, (ii) the amount of the Commitment Amount and/or portions of Advances of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, 5,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, 1,000,000;
(iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall shall:
(A) execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 2,500; and
(which shall be payable by one or more B) deliver a copy of the parties such Assignment and Acceptance to the Assignment and Acceptance, and not by Borrower at the Borrower time it delivers a copy to the Administrative Agent; and
(except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (viv) the consent of unless the Borrower shall have consented thereto, no such assignment of undrawn Commitments shall be made:
(A) except to a Person that shall have represented that it has a combined capital and surplus in excess of $50,000,000; and
(B) except to a Person, other than a commercial bank or other financial institution, that shall have represented that such Person is not be required after engaged in, and does not have an Affiliate that is engaged in, the occurrence and during business of providing PCS telecommunications services to the continuance of any Event of Default. public.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, :
(xi) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the Intercreditor Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and thereunder; and
(yii) 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 the Intercreditor Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; ;
(iii) such assignee confirms that it has received a copy of this Agreement, the Intercreditor Agreement and each other Loan Document, together with copies of the financial statements referred to in Section 4.01(e10.1(bb) 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 Administrative AgentAgent or the Arranger, 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and ;
(viivi) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement and the Intercreditor Agreement are required to be performed by it as a Lender; 127
(vii) such assignee makes the representations set forth in subsection (a)(iv) above and in Section 13.13; and
(viii) such assignee confirms that it is bound by the confidentiality provisions set forth in Section 14.14.
(cd) The Administrative Agent shall maintain at its address referred to in Section 8.02 14.2 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 Lenders and the Commitment Amount Commitments of, and portions of the principal amount of the Advances owing to, each Lender from time to time (the “"Register”"). The entries in the Register shall be -------- conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneeassignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is substantially in substantially the form of Exhibit AC, ---------
(i) accept such Assignment and Acceptance, ;
(ii) record the information contained therein in the Register and Register; and
(iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.0714.9, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower Confidential Information received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Lender.
(g) If Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting including its Commitment Percentage in the suspension Advances) in favor of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign any Federal Reserve Bank in accordance with this Section 8.07 to one or more Eligible Assignees designated by Regulation A of the Borrower and reasonably acceptable to Board of Governors of the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodFederal Reserve System.
(h) Notwithstanding anything to the contrary contained hereinany other provision set forth in this Agreement, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from at any time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests rights and obligations hereunder to EKN in any Advance to accordance with the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 SPCEKN Documents. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.128
Appears in 2 contracts
Sources: Loan Agreement (Omnipoint Corp \De\), Loan Agreement (Omnipoint Corp \De\)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (Agent, which consents shall not be unreasonably withheld or delayed)delayed (it being agreed that notwithstanding anything herein, including the proviso set forth below, (x) prior to the Effective Date, the Borrower may withhold such consent in its sole discretion and (y) during the Certain Funds Period the Borrower may withhold such consent in its sole discretion unless a Certain Funds Event of Default has occurred and is continuing) and, in the case of the Borrower, (A) shall not be required while an Event of Default (or during the Certain Funds Period a Certain Funds Event of Default) has occurred and is continuing and (B) shall be deemed given if demanded the Borrower shall not have objected within 10 Business Days following its receipt of notice of such assignment (and, within five days after demand by the Borrower (with a copy of such demand to the Administrative Agent) to (i) any Defaulting Lender, (ii) any Lender) that has made a demand for payment pursuant to Section 8.07(g2.11 or 2.14, (iii) shall any Lender that has asserted pursuant to the extent required by Section 2.08(b) or 2.12 that it is impracticable or unlawful for such SectionLender to make Advances or (iv) any Non-Consenting Lender, such Lender will), assign to one or more banks or Persons (other entities than natural persons) all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided that provided, however, that:
(i) such consent shall not be required in the case of an assignment to any other Lender or an Affiliate of any Lender if, subsequent thereto and prior to the Bridge Facility Maturity Date, the Initial Lenders would hold, in the aggregate, at least 51% of the unused Commitments and aggregate outstanding principal amount of Advances; provided, that notice thereof shall have been given to the Borrower and the Administrative Agent;
(ii) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(iii) except in the case of the assigning an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, 1,000,000;
(iiiiv) each such assignment shall be to an Eligible Assignee;
(v) each such assignment made as a result of a demand by the Borrower pursuant to this Section 9.07(a) shall be arranged by the Borrower with the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement;
(vi) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 9.07(a), (iv1) so long as an Event of Default shall have occurred and be continuing and (2) unless and until such Lender shall have received one or more payments from one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount, and from the Borrower or one or more Eligible Assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.11, 2.14 or 9.04(c)) and (3) unless and until the Borrower shall have paid (or caused to be paid) to the Administrative Agent a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and
(vii) the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to this Section 9.07(a), the Borrower) shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AcceptanceAcceptance and, together with if such assignment does not occur as a result of a demand by the Borrower pursuant to this Section 9.07(a) (in which case the Borrower shall pay the fee required by subclause (vi)(3) of this Section 9.07(a)), a processing and recordation fee of $3,500 (which shall be payable by one or more of 3,500; provided, however, that the parties Administrative Agent may, in its sole discretion, elect to the Assignment waive such processing and Acceptance, and not by the Borrower (except recordation fee in the case of any assignment. The assignee, if it is not a demand under Section 8.07(g))Lender, and shall not be payable if deliver to the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultAdministrative Agent an Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Section 9.04(a) and (b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; ;
(iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative any 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 confirms that it is an Eligible Assignee; ;
(vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and and
(vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B 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.
(d) The Administrative Agent Agent, acting solely for this purpose as the agent of the Borrower, shall maintain at its address referred to in Section 8.02 9.02(a) 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 Lenders and the Commitment Amount of, and principal amount (and stated interest) of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders may shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than the Borrower or any of its Affiliates or any natural person) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCs)it) without the consent of the Administrative Agent or the Borrower; provided that provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ;
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iii) such Lender shall remain the Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, the Administrative Agent Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and Agreement; and
(ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this Agreement, other than or any consent to any departure by the Borrower herefrom or therefrom, except to the extent that such amendment, modification waiver or waiver with respect consent would reduce the principal of, or stated rate of interest on, the Advances or the stated rate at which any other amounts payable hereunder are calculated, in each case to any Advance the extent subject to such participation, or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Advances or any other amounts payable hereunder, in each case to the extent subject to such participation. Each Lender shall promptly notify the Borrower after any sale of a participation by such Lender pursuant to this Section 9.07(e); provided that the failure of such Lender to give notice to the Borrower as provided herein shall not affect the validity of such participation or impose any obligations on such Lender or the applicable participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Advances 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, Advance or Commitmentother 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, extends and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any Commitmentnotice to the contrary. For the avoidance of doubt, releases the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Each participant shall be entitled to the benefits of Sections 2.11 and 2.14 (subject to the requirements and limitations therein, including the requirements set forth in Section 2.14(f) (it being understood that the documentation required under Section 2.14(f) shall be delivered to the participating Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to this Section 9.07; provided that such participant agrees to be subject to the provisions of Section 9.07 as if it were an assignee. A participant shall not be entitled to receive any guarantor greater payment under Section 2.11 or 2.14 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, unless the Borrower is notified of any the participation sold to such Advance participant and the sale of the participation to such participant is made with the Borrower’s prior written consent (not to be unreasonably withheld or releases any substantial portion of collateral, if any, securing any such Advancedelayed).
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 Information relating to the Borrower or any of its Subsidiaries received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)as more fully set forth in Section 9.08.
(g) If Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14without limitation, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders its Commitment and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all it) to secure obligations of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, including, without limitation, any pledge or if the Borrower shall fail assignment to designate secure obligations in favor of any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to Regulation A of the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by Board of Governors of the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all Federal Reserve System or any part of any Advance that central bank having jurisdiction over such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCLender.
Appears in 2 contracts
Sources: Bridge Credit Agreement (Equinix Inc), Bridge Credit Agreement (Equinix Inc)
Assignments and Participations. (a) Each This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender mayand their respective permitted successors and assigns; provided, with however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the BorrowerLenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (c) below, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, Lender may assign to one or more banks other lenders or other entities all or a portion of its rights and obligations under this Agreement (including with respect to all or a portion of its CommitmentInitial Term Loan Commitment and any Initial Term Loan made by it with the written consent of the Collateral Agent, provided, however, that no written consent of the Advances owing Collateral Agent or the Administrative Agent shall be required (A) in connection with any assignment by a Lender to it a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender; provided, further, that the consent of Borrower shall be required (such consent not to be unreasonably withheld, conditioned or delayed, and its participation shall be deemed consented to the extent Borrower shall have failed to respond to a request for same within seven (7) Business Days) for any such sale, assignment or transfer by a Lender unless an Event of Default has occurred under clauses (a) (solely with respect to non-payment of principal or interest), (c) (solely with respect to a breach of any financial covenant set forth in Facility LCsSection 7.03); provided that , (d)(1), (d)(2), (f), or (g) of Section 9.01, and such Event of Default is continuing at the time of such assignment.
(c) Assignments shall be subject to the following additional conditions:
(i) each Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of a constant, and not a varying, percentage of all of $1,000,000 in excess thereof (or the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) a Lender, and shall an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be an integral assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 or such Lender’s entire Commitment, in excess thereof);
(iiiii) each such assignment shall be to an Eligible Assignee, (iv) the The parties to each such assignment shall execute and deliver to the Collateral Agent (and the Administrative Agent, if applicable), for its acceptance and recording in the Registeracceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower 5,000 (except in the case payment of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower such fee shall not be required after in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) and all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering or terrorist financing rules and regulations, including the occurrence and during USA PATRIOT Act; and
(iii) No such assignment shall be made (A) to any Loan Party or any of their respective Affiliates, or (B) any Disqualified Institution in the continuance absence of an Event of Default under clauses (a) (solely with respect to non-payment of principal or interest), (c) (solely with respect to a breach of any Event financial covenant set forth in Section 7.03), (d)(1), (d)(2), (f), or (g) of Default. Section 9.01.
(d) Upon such execution, delivery, acceptance delivery and recordingacceptance, from and after the effective date specified in each Assignment and AcceptanceAcceptance and recordation on the Register, which effective date shall be at least 3 Business Days after the delivery thereof to the Collateral Agent (or such shorter period as shall be agreed to by the Collateral Agent and the parties to such assignment), (xA) the assignee thereunder shall be become a party hereto “Lender” hereunder and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder Acceptance and (yB) the assigning 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(be) By executing and delivering an Assignment and Acceptance, the assigning 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 Acceptance, such the 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 Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or any of its Subsidiaries or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agentassigning Lender, such assigning Lender any Agent 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 AgreementAgreement and the other Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent Agents to take such action as agent agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agents by the terms hereofhereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (viivi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(cf) The Administrative Agent shall maintain shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain, or cause to be maintained at its address referred to in Section 8.02 the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment Amount Commitments of, and the principal amount of the Advances Loans (and stated interest thereon) (the “Registered Loans”) owing to, to each Lender from time to time (the “Register”)time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders may shall treat each Person whose name is recorded in the Register 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 written notice. This Section 12.07(f) shall be construed so that all Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related Treasury Regulations (or any other relevant, successor or amended provisions of the Code or of such Treasury Regulations).
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to the Administrative Agent) and provide to the Collateral Agent a copy of the fully executed Assignment and Acceptance.
(h) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s).
(i) If any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrower, maintain, or cause to be maintained, a register, on which it enters the name of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the “Participant Register”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant 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. This Section 12.07(i) shall be construed so that all Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related Treasury Regulations (or any other relevant, successor or amended provisions of the Code or of such Treasury Regulations).
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(ej) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment, Commitments and the Advances owing to it and its participation in Facility LCsLoans made by it); provided provided, that (i) such Lender’s obligations under this Agreement (including its Commitments hereunder) and the other Loan Documents shall remain unchanged, ; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) and the Borrower, the Administrative Agent Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document) and (iv) no such Lender participation shall retain be made to any Disqualified Institution; provided that the sole right Lenders may sell participations to approveDisqualified Institutions on the date of the occurrence of an Event of Default and thereafter if such Event of Default is continuing. The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 (subject to the requirements and limitations therein, without including the consent of any Participantrequirements under Section 2.09(d), any amendment, modification or waiver of any provision it being understood that the documentation required under Section 2.09(d) shall be delivered to the participating Lender) of this Agreement, other than any such amendment, modification or waiver Agreement with respect to its participation in any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, the Commitments and the Loans as if any, securing any such Advanceit was a Lender.
(fk) Any Lender maymay at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to, or other indebtedness issued by, such Lender pursuant to a securitization transaction (including any structured warehouse credit facility, collateralized loan obligation transaction or similar facility or transaction, and including any further securitization of the indebtedness or equity issued under such a transaction) (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect a Securitization, including by providing such information as may be reasonably requested by such Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all rating of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all Loans or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCSecuritization.
Appears in 2 contracts
Sources: Financing Agreement (Beachbody Company, Inc.), Financing Agreement (Beachbody Company, Inc.)
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrowerso long as no Default shall have occurred and be continuing, each LC Issuer if demanded by BRW (following a demand by such Lender pursuant to Section 2.10 or 2.12) upon at least five Business Days’ notice to such Lender and the Administrative Agent (which consents shall not be unreasonably withheld or delayed)Agent, and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, will assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more Facilities, (ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 1,000,000 or an integral multiple of $1,000,000 in excess thereof (or such Lender’s entire Commitmentlesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the Borrowers) under each Facility for which a Commitment is being assigned; provided, that in the event of concurrent assignments to two or more Related Funds, all such concurrent assignments shall be aggregated in determining compliance with this requirement, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrowers pursuant to this Section 9.07(a) shall be arranged by the Borrowers after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrowers pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) [intentionally omitted] and (vii) the parties to each such assignment shall execute and deliver to the Administrative 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 processing and recordation fee of $3,500 (which 3,500; provided, however, that for each such assignment made as a result of a demand by any Borrower pursuant to this Section 9.07(a), such Borrower shall pay to the Administrative Agent the applicable processing and recordation fee; provided further, that no such fee shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of any assignment to a demand under Section 8.07(g)Related Fund; and provided still further that, in the case of contemporaneous assignments by a Lender to more than one fund managed by the same investment advisor (which funds are not then Lenders hereunder), and only a single such fee shall not be payable if the assignee is a Federal Reserve Bank), and for such contemporaneous assignments.
(vb) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, (xi) 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 or Issuing Bank, as the case may be, hereunder and (yii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the each Lender Party assignor thereunder and the each assignee thereunder confirm to and agree with each other and the other parties thereto and 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 statements, warranties or representations made in or in connection with this Agreement any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of this Agreement any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant heretothereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (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(e) 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 Administrative any 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 Administrative each Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative such Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a LenderLender or Issuing Bank, as the case may be.
(cd) The Administrative Agent Agent, acting for this purpose (but only for this purpose) as the agent of each of the Borrowers, shall maintain at its address referred to in Section 8.02 9.02 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 Lenders Lender Parties and the Commitment Amount 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 conclusive and binding for all purposes, absent manifest error, and the each Borrower, the Administrative Agent Agents and the Lenders Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the any Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee representing that it is an Eligible Assigneeassignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, each Borrower, at its own expense, shall execute and deliver to the Administrative 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 each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such 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 or A-2 hereto, as the case may be.
(ef) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more banks Persons (other than any Loan Party or other entities (each, a “Participant”any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes (if any) held by it); provided provided, however, that (i) such LenderLender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the Borrowerholder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent Agents and the other Lenders Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such LenderLender Party’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this Agreementany Loan Document, other than or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate or fees payable with respect extent subject to any such Advance or Commitmentparticipation, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation, or Commitment, extends any Commitment, releases any guarantor release all or substantially all of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethe Collateral.
(fh) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.07, disclose to the assignee or participant or proposed assignee or participant, participant any information relating to the Borrower Borrowers furnished to such Lender Party by or on behalf of the BorrowerBorrowers; provided 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 relating to the Borrower Confidential Information received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Party.
(gi) If 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 (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation the Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such periodRegulation A of the Board of Governors of the Federal Reserve System.
(hj) Notwithstanding anything to the contrary contained herein, any Lender Party, (a “Granting BankLender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank Lender to the Administrative Agent and the Borrower, Borrowers (an “SPC”) the option to provide to the Borrower all or any part of any Advance that such Granting Bank Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make fund any Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to provide make all or any part of such Advance, the Granting Bank 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 Commitment of the Granting Bank Lender to the same extent, and as if, such Advance were made by such Granting BankLender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with a Lender Party would otherwise be liable for so long as, and to the extent, the Granting BankLender provides such indemnity or makes such payment and (ii) no SPC shall be entitled to the benefits of Sections 2.10 and 2.12 (or any other increased costs protection provision). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency insolvency, or liquidation proceedings proceeding under the laws of the United States or any State thereof. In addition, notwithstanding Notwithstanding anything to the contrary contained in this Section 8.07Agreement, any SPC may (i) with notice to, but without the prior written consent of, the Borrower Borrower, the Syndication Agent and the Administrative Agent and without paying any processing fee therefor, assign all or a any portion of its interests interest in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Advances to any rating agency, commercial paper dealer or provider of any surety, surety or guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(hsubsection 9.07(j) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the prior written consent of each Granting Lender, all or any part of whose Advances are being funded by the SPC at the time of such amendment. For the avoidance of doubt, with respect to the Agents, the other Lender Parties and the Borrowers, the Granting Bank shall for all purposes, including, without limitation, the approval of any amendment or SPCwaiver of any provision of any Loan Document, be the Lender Party of record hereunder.
(k) Notwithstanding any other provision set forth in this Agreement, any Lender Party that is a fund that invests in bank loans may pledge all or any portion of its rights in connection with this Agreement to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities; provided that nothing contained herein shall affect any obligations of the
Appears in 2 contracts
Sources: Credit Agreement (Broadwing Communications Inc), Credit Agreement (Broadwing Inc)
Assignments and Participations. (a) Each Lender may, upon ten days’ notice to the Agent (and in the case of an assignment of any Swing Line Commitment, the Sub-Agent) and with the prior written consent of each Swing Line Lender (in the Borrower, each LC Issuer case of any assignment of any Revolving Credit Commitment) and the Administrative Agent Company (which consents shall not be unreasonably withheld or delayed)) and, and if demanded by the Borrower Company pursuant to Section 8.07(g2.05 (b) shall or 2.06(b), upon at least 20 Business Days’ notice to such Lender and the extent required by such SectionAgent, will assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Revolving Credit Commitment, the Revolving Credit Advances owing to it and the Revolving Credit Note or Notes held by it or, in the case of a Swing Line Lender, all or a portion of its participation in Facility LCsSwing Line Commitment and the Swing Line Advances owing to it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an affiliate of a Lender, or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Revolving Credit Commitment Amount or Swing Line Commitment (as applicable) of the assigning Lender L▇▇▇▇▇ being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment10,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Company pursuant to this Section 8.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Company pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Company or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the RegisterRegister (as defined in clause (d) below), an Assignment and AcceptanceAssumption, together with any Revolving Credit Note requested pursuant to Section 2.13(e) subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not unless waived by the Borrower (except Agent in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank)its sole discretion, and (vvii) the consent of Eligible Assignee shall complete, execute and deliver to the Borrower shall not be required after Borrowers and Agent the occurrence and during the continuance of any Event of Defaultappropriate tax form pursuant to Section 2.14. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AcceptanceAssumption and upon compliance with clause (vii) of the previous sentence, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption 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 (although hereto); provided that an assigning Lender shall continue to be entitled Lender’s rights to indemnification and reimbursement pursuant to Section 8.04(c))8.04 and its rights and obligations under Sections 2.11 and 2.14 shall survive assignment hereunder. Notwithstanding anything contained in this Section 8.07(a) to the contrarycontrary contained herein, any Lender (Aa “Granting Lender”) may grant to a special purpose vehicle (an “SPV”) of such Granting Lender, identified as such in writing from time to time by the consent of Granting Lender to the BorrowerAgent and the Company, the LC Issuers and option to provide to the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign Borrowers all or any part of its any Advance that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to Section 2.01, provided that (i) nothing herein shall constitute a commitment by any SPV to make any Advance, (ii) if an SPV 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 Borrowers may bring any proceeding against either the Granting Lender or the SPV in order to enforce any rights of the Borrowers hereunder. The making of an Advance by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by the Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any payment under this Agreement for which a Lender would otherwise be liable, for so long as, and to the extent, the related Granting Lender makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States or any State thereof arising out of any claim against such SPV under this Agreement. In addition, notwithstanding anything to the contrary contained in this Section, any SPV may with notice to, but without the prior written consent of, the Company or the Agent and without paying any processing fee therefor, assign all or a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any portion of its obligations hereunderinterests in any Advances to its Granting Lender or to any financial institutions (consented to by the Company and the Agent) providing liquidity and/or credit support (if any) with respect to commercial paper issued by such SPV to fund such Advances and such SPV may disclose, on a confidential basis, confidential information with respect to the Company and its Subsidiaries to any rating agency, commercial paper dealer or provider of a surety, guarantee or credit liquidity enhancement to such SPV. This paragraph may not be amended without the consent of any SPV at the time holding Advances under this Agreement.
(b) By executing and delivering an Assignment and AcceptanceAssumption, 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 AcceptanceAssumption, 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, 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 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 any Borrower or the performance or observance by the any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 AcceptanceAssumption; (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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Credit Note or Notes subject to such assignment, the Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company. The Administrative relevant Borrower, at its own expense, shall if so requested pursuant to Section 2.13(e) execute and deliver to the Agent in exchange for the surrendered Revolving Credit Note a new Revolving Credit Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Assumption and, if the assigning Lender has retained a Commitment hereunder, a new Revolving Credit Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Revolving Credit Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Credit Note or Notes, shall be dated the effective date of such Assignment and Assumption and shall otherwise be in substantially the form of Exhibit A hereto.
(d) The Agent acting solely for this purpose as a nonfiduciary agent of the relevant Borrower shall maintain at its address referred to in Section 8.02 if such address is within the United States and, if not, at one of its offices located within the United States a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and and, with respect to L▇▇▇▇▇▇, the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the each Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Company or any Lender Lender, as to its Commitment, at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may may, with the prior consent of the Company (which consent shall not be unreasonably withheld or delayed), upon notice to the Agent, sell participations to one or more banks or other entities (each, a “Participant”other than the Company or any Affiliate of the Company) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it (including such Lender’s participations in Swing Line Advances) and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the Borrowerholder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Note, other than or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate or fees payable with respect extent subject to any such Advance or Commitmentparticipation, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation or Commitmentrelease the Company from its obligations hereunder, extends including, without limitation, its obligations under Article IX. Each Lender that sells a participation shall, acting solely for this purpose as a nonfiduciary agent of the relevant Borrower, maintain a register at one of its offices located within the United States on which it enters the name and address of each participant and the Commitment of, and principal amount of the Advances owing to, each participant from time to time (the “Participant Register”); provided that no Lender shall have any Commitment, releases obligation to disclose all or any guarantor portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such Advance disclosure is necessary to establish that such commitment, loan, letter of credit or releases any substantial portion other obligation is in registered form under Section 5f.103-1(c) of collateralthe United States Treasury Regulations. The entries in the Participant Register shall be conclusive and binding, if anyabsent manifest error, securing any and such AdvanceLender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement.
(f) Any Lender 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, participant any information relating to the any Borrower furnished to such Lender by or on behalf of the any Borrower; provided 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 Confidential Information relating to the Borrower Borrowers received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Lender.
(g) If Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation the Note or Notes held by it), in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to Regulation A of the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by Board of Governors of the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all Federal Reserve System or any part of any Advance that other central bank having jurisdiction over such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCLender.
Appears in 2 contracts
Sources: Credit Agreement (Pepsico Inc), Credit Agreement (Pepsico Inc)
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrowerso long as no Default shall have occurred and be continuing, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.10 or 2.12) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAdministrative Agent will, assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment shall be of a constant, and not a varying, percentage of all of the assigning a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments and Advances being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 1,000,000 (or, if lessin each case, such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 Borrower) under each Facility for which a Commitment or such Lender’s entire CommitmentAdvance is being assigned, (iiiii) each such assignment shall be to an Eligible Assignee, Assignee and (iviii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and (except in the case of an assignment to a Person that, immediately prior to such assignment, was an Affiliate or an Approved Fund of the assigning Lender) a processing and recordation fee of $3,500 3,500.
(which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (vb) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, (xi) 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 or the Issuing Bank, as the case may be, hereunder and (yii) the Lender or the Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s or the Issuing Bank’s rights and obligations under this Agreement, such Lender or the Issuing Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the each Lender Party assignor thereunder and the each assignee thereunder confirm to and agree with each other and the other parties thereto and 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 statements, warranties or representations made in or in connection with this Agreement any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of this Agreement any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant heretothereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (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(e) 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 Administrative any 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 Administrative each Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative such Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a LenderLender or the Issuing Bank, as the case may be.
(cd) The Administrative 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 Lenders Lender Parties and the Commitment Amount 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 conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee representing that it is an Eligible Assigneeassignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC 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 and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative 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 each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such 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 ▇-▇, ▇-▇ or A-3 hereto, as the case may be.
(ef) The Issuing Bank may assign to an Eligible Assignee all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more banks Persons (other than any Loan Party or other entities (each, a “Participant”any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes (if any) held by it); provided provided, however, that (i) such LenderLender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent Agents and the other Lenders Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such LenderLender Party’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this Agreementany Loan Document, other than or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate or fees payable with respect extent subject to any such Advance or Commitmentparticipation, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation, or Commitment, extends any Commitment, releases any guarantor release all or substantially all of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethe Collateral.
(fh) 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, participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided 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 relating to the Borrower Confidential Information received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Party.
(gi) If Notwithstanding any other provision set forth in this Agreement, any Lender (i) shall make demand for payment Party may at any time create a security interest in all or any portion of its rights under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent Agreement and the LC Issuers all other Loan Documents (but not less than all) of such Lender’s Commitmentincluding, without limitation, the Advances owing to it and its participation the Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such periodRegulation A of the Board of Governors of the Federal Reserve System.
(hj) Notwithstanding anything to the contrary contained herein, any Lender (that is a “Granting Bank”) fund that invests in bank loans may grant to create a special purpose funding vehicle (an “SPC”), identified as such security interest in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part portion of any Advance that such Granting Bank would otherwise be obligated the Advances owing to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment it and the Note or Notes held 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 Bank shall be obligated to make such Advance pursuant it to the terms hereof. The making trustee for holders of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extentobligations owed, and as ifor securities issued, such Advance were made by such Granting Bank. Each party hereto hereby agrees fund as security for such obligations or securities, provided, that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain unless and until such trustee actually becomes a Lender in compliance with the Granting Bank). In furtherance other provisions of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without no such pledge shall release the prior written consent of, the Borrower and the Administrative Agent and without paying pledging Lender from any processing fee therefor, assign all or a portion of its interests in any Advance to obligations under the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances Loan Documents 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 8.07(h) may trustee shall not be amended in entitled to exercise any manner which adversely affects of the rights of a Granting Bank Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or an SPC without the written consent of such Granting Bank or SPCotherwise.
Appears in 2 contracts
Sources: Credit Agreement (Esterline Technologies Corp), Credit Agreement (Esterline Technologies Corp)
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.11 or 2.14) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAgent, will assign to one or more banks or other entities Persons all or a portion of its rights and obligations under any Facility under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement with respect to one of more Facilities, (ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under this AgreementAgreement with respect to a Facility, (ii) the amount of the Commitment Amount under such Facility of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 5,000,000 or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof unless the Borrower and the Agent otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 (which payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), and shall not be payable if an assignment made at the assignee is a Federal Reserve Bank), and (v) the consent request of the Borrower shall not be required after the occurrence and during the continuance of any Event of Defaultto an Eligible Assignee that is an existing Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (other than its rights under Sections 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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.
(d) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Amount Commitments of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Note, other than or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate extent subject to such participation, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advanceparticipation.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 Borrower Information relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Lender.
(g) If Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation any Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment Regulation A of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance Board of Governors of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCFederal Reserve System.
Appears in 2 contracts
Sources: Credit Agreement (Embarq CORP), Credit Agreement (Embarq CORP)
Assignments and Participations. (a) Each This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender mayand their respective successors and assigns; provided, with however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the BorrowerLenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (c) below, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, Lender may assign to one or more banks other lenders or other entities all or a portion of its rights and obligations under this Agreement (including with respect to any Loan made by it with the written consent of the Collateral Agent and the Administrative Agent, provided, however, that no written consent of the Collateral Agent or the Administrative Agent shall be required if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or a any substantial portion of its Commitmentthe business or loan portfolio of such Lender or if such assignment is to another Lender, an Affiliate of a Lender or a Related Fund with respect to a Lender.
(c) Assignments shall be subject to the Advances owing to it and its participation in Facility LCs); provided that following additional conditions:
(i) each such assignment shall be of in an amount which is at least $1,000,000 or a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or in excess thereof (except such Lender’s entire Commitment, (iii) each such assignment minimum amount shall be not apply to an Eligible Assigneeassignment by a Lender to (A) a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (ivB) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $1,000,000 or a multiple of $1,000,000 in excess thereof);
(ii) the parties to each such assignment shall execute and deliver to the Collateral Agent and the Administrative Agent, for its acceptance and recording in the Registeracceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $3,500 (which shall be payable by one or more except the payment of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower such fee shall not be required after in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender);
(iii) no such assignment shall be made to any Loan Party, equity holder of the occurrence and during the continuance Parent or any of any their respective Affiliates; and
(iv) unless an Event of Default. Default shall have occurred and be continuing, the Administrative Borrower shall have provided its written consent (which shall not be unreasonably withheld or delayed and which consent shall be deemed to have been given if not delivered within five (5) days upon request thereof) to any assignment, provided that such consent will not be required if (A) the assignment is to an existing Lender or an Affiliate or Related Fund of an existing Lender or (B) such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender.
(d) Upon such execution, delivery, acceptance delivery and recordingacceptance, from and after the effective date specified in each Assignment and AcceptanceAcceptance and recordation on the Register, which effective date shall be at least 3 Business Days after the delivery thereof to the Collateral Agent (or such shorter period as shall be agreed to by the Collateral Agent and the parties to such assignment), (xA) the assignee thereunder shall be become a party hereto “Lender” hereunder and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder Acceptance and (yB) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, other than obligations which survive under Section 12.19, 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(be) By executing and delivering an Assignment and Acceptance, the assigning 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 Acceptance, such the 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 Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or any of its Subsidiaries or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agentassigning Lender, such assigning Lender any Agent 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 AgreementAgreement and the other Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent Agents to take such action as agent agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agents by the terms hereofhereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (viivi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(cf) The Administrative Agent shall maintain at its address referred shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to in Section 8.02 be maintained, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances Loans (and stated interest thereon) (the “Registered Loans”) owing to, to each Lender from time to time (the “Register”)time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent Agents and the Lenders may shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower or and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(dg) Upon its receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Agent’s execution of an acceptance to such Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible AssigneeAcceptance), the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) shall accept such Assignment and Acceptanceassignment, (ii) record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and (iii) give prompt notice thereof added to the Borrowerprincipal balance of the Loans made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to the Administrative Agent) and provide to the Collateral Agent a copy of the fully executed Assignment and Acceptance.
(eh) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(i) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in the Registered Loans) to any Person except to the extent that such disclosure is necessary to establish that such Registered Loan is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. For the avoidance of doubt, the Administrative Agent (it its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(j) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsLoans made by it); provided provided, that (i) such Lender’s obligations under this Agreement and the other Loan Documents shall remain unchanged, ; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) and the BorrowerBorrowers, the Administrative Agent Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iviii) a participant shall not be entitled to require such Lender shall retain to take or omit to take any action hereunder except (A) actions directly effecting an extension of the sole right to approvematurity dates or decrease in the principal amount of the Loans, without (B) actions directly effecting an extension of the consent due dates or a decrease in the rate of any Participant, any amendment, modification interest payable on the Loans or waiver of any provision of the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other than any such amendment, modification or waiver Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, the Loans as if any, securing any such Advanceit was a Lender.
(fl) Any Lender maymay at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all rating of its other rights and obligations hereunder within Loans or the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodSecuritization.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 2 contracts
Sources: Financing Agreement (Cherokee Inc), Financing Agreement (Cherokee Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gother than a Designated Bidder) shall to the extent required by such Section, may assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the A Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) and the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and, except in the case of an assignment to a Lender Affiliate, a processing and recordation fee of $3,500 (which 3,000, and shall be payable by one or more of the parties send to the Borrower an executed counterpart of such Assignment and Acceptance, and not provided further, however, that (i) the sum of (x) the amount of the Commitment of the assigning Lender being assigned to the assignee pursuant to each such assignment (determined as of the date of the Assignment) plus (y) the amount of the "Commitment" of the assigning Lender under the Long-Term Revolving Credit Agreement and/or the Canadian Credit Agreement contemporaneously assigned by such assigning Lender to such assignee as contemplated by clause (iii) of this sentence must be equal to or greater than $25,000,000, or if less, the entire amount of such assigning Lender's "Commitment" (unless the Borrower and the Administrative Agent shall otherwise consent, which consent may be withheld for any reason) and must be an integral multiple of $1,000,000, (ii) any assignment to a Lender Affiliate will not relieve the assigning Lender of its obligation to make Advances hereunder timely in accordance with the terms hereof in the event such Lender Affiliate shall fail to do so and (iii) except in the case of an assignment to a demand under Lender Affiliate or as required by the Borrower pursuant Section 8.07(g))2.21(d) or 2.22, each such assignment shall be of a constant, and not a varying, percentage of all such Lender's rights and obligations under this Agreement (other than any right to make B Advances, any B Advances or any Notes) and the same constant percentage of all such Lender's rights and obligations, if any, under the Long-Term Revolving Credit Agreement and the Canadian Credit Agreement unless the Long-Term Revolving Credit Agreement or the Canadian Agreement, as the case may be, has been terminated, shall not be payable if contemporaneously assigned by such assigning Lender to the same assignee is a Federal Reserve Bank), and (vpursuant to Section 8.07(a) the consent of the Borrower shall not be required after Long-Term Revolving Credit Agreement and Section 9.07(a) of the occurrence and during the continuance of any Event of DefaultCanadian Credit Agreement. Upon such the execution, delivery, acceptance and recordingrecording of each Assignment and Acceptance by the parties thereto, from and after the effective date specified in each such Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) except as otherwise provided in clause (ii) above, 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, except in the circumstances contemplated by clause (ii) above, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an hereto, provided, however, that such assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required retain any claim with respect to any assignment by any Lender fee, interest, cost, expense or indemnity which accrues, or relates to an Affiliate event that occurs, prior to the date of such Lender assignment pursuant to Section 2.03, 2.06, 2.07, 2.11, 2.12, 2.15 or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder8.04).
(b) By executing and delivering an Assignment and Acceptance, the each 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is (subject to approval in writing by the Borrower and the Administrative Agent to the extent required) an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance Acceptance, each Designation Agreement, each New Lender Agreement and each Commitment Increase Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and and, with respect to Lenders other than Designated Bidders, the Commitment Amount of, and principal amount of the A Advances owing to, each Lender from time to time (the “Register”"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AD 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 and its receipt of an executed counterpart of such Assignment and Acceptance, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for any surrendered Note or Notes a new Note to the order of such Eligible Assignee and, if the assigning Lender has retained a Commitment hereunder, a new Note to the order of the assigning Lender. Any such new 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 hereto.
(e) Each Lender (other than a Designated Bidder) may designate one or more banks or other entities to have a right to make B Advances as a Lender pursuant to Section 2.19; provided that (i) such Lender shall have obtained the written consent of the Administrative Agent and the Borrower, such consent not to be unreasonably withheld, (ii) no such Lender shall be entitled to make more than two such designations, (iii) each such Lender making one or more of such designations shall retain the right to make B Advances as a Lender pursuant to Section 2.19, (iv) each such designation shall be to a Designated Bidder and (v) the parties to each such designation shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, a Designation Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Designation Agreement, the designee thereunder shall be a party hereto with a right to make B Advances as a Lender pursuant to Section 2.19 and the obligations related thereto.
(f) By executing and delivering a Designation Agreement, the Lender making the designation thereunder and its designee thereunder confirm and agree with each other and the other parties hereto as follows: (i) such 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 or any other instrument or document furnished pursuant hereto, (ii) such Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such designee 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 the Designation Agreement; (iv) such designee will, independently and without reliance upon the Administrative Agent, such designating 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 designee confirms that it is a Designated Bidder; (vi) such designee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto, and (vii) such designee 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.
(g) Upon its receipt of a Designation Agreement executed by a designating Lender and a designee representing that it is a Designated Bidder, the Administrative Agent shall, if such Designation Agreement has been completed and is substantially in the form of Exhibit J hereto, (i) accept such Designation Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(h) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including all or a portion of its Commitment, and the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) such Lender’s 's obligations under this Agreement (including its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and Agreement, (ivv) such Lender shall retain the sole right continue to approve, be able to agree to any modification or amendment of this Agreement or any waiver hereunder without the consent consent, approval or vote of any Participant, any amendment, modification such participant or waiver group of any provision of this Agreementparticipants, other than any such amendmentmodifications, modification or waiver with respect to any Advance or Commitment in amendments and waivers which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones (A) postpone any date fixed for any regularly scheduled payment of principal of, or reduce any payment of, principal of or interest on such Lender's Advances or any facility fees onor utilization fees payable under this Agreement, any or (B) increase the amount of such Advance Lender's Commitment in a manner which would have the effect of increasing the amount of a participant's participation, or Commitment(C) reduce the interest rate payable under this Agreement and such Lender's Advances, extends any Commitment, releases any guarantor or (D) consent to the assignment or the transfer by the Borrower of any such Advance of its rights and obligations under the Agreement, and (vi) except as contemplated by the immediately preceding clause (v), no participant shall be deemed to be or releases to have any substantial portion of collateral, if any, securing any such Advancethe rights or obligations of a "Lender" hereunder.
(fi) Any Lender may, in connection with any assignment assignment, designation or participation or proposed assignment assignment, designation or participation pursuant to this Section 8.07, disclose to the assignee assignee, designee or participant or proposed assignee assignee, designee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee assignee, designee or participant or proposed assignee assignee, designee or participant shall agree in writing for the benefit of the Borrower to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance in a manner consistent with legal process and other requirements of law)Section 8.08.
(gj) If Anything in this Agreement to the contrary notwithstanding, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, including the Advances owing to it) and the Notes, if any, issued to it and its participation hereunder in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
Regulation A of the Board of Governors of the Federal Reserve System (hor any successor regulation) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 applicable operating circular of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Federal Reserve Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 2 contracts
Sources: Short Term Revolving Credit Agreement (Burlington Resources Inc), Short Term Revolving Credit Agreement (Burlington Resources Inc)
Assignments and Participations. (a) Each Lender Bank may, with upon obtaining the prior written consent of the Borrower, Agent and each LC Issuer and the Administrative Agent Issuing Bank (which consents consent by any such party shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement and, on a percentage basis equal to the percentage of the Commitment being assigned, under any Local Currency Addendum (including including, without limitation, all or a portion of its Commitment, any Local Currency Commitment, the Advances owing to it and its participation in Facility LCsthe Letter of Credit Participations and Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning LenderBank’s rights and obligations under this Agreementso assigned, (ii) the amount of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) may be in the amount of such Bank’s entire Commitment but otherwise shall in no event not be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentunless the Company and the Agent otherwise consent, (iii) each such assignment shall be to an Eligible Assignee, and in the case of an assignment of rights and obligations under a Local Currency Addendum, each such assignment shall be to an entity that qualifies as an Eligible Local Currency Bank under the terms of such Local Currency Addendum, (iv) the parties to each such assignment shall (A) execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register, an Assignment and Acceptance, together with Acceptance (and such other document or documents as may be required by any applicable Local Currency Addendum) and (B) deliver to the Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance3,000, and not by the Borrower (except in the case of an assignment by a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), Bank to an Affiliate; and (v) if no Event of Default has occurred and is continuing, the prior written consent of the Borrower Company (which consent shall not be unreasonably withheld or delayed) shall be required after the occurrence and during the continuance for an assignment by a Bank to an assignee which is not a Bank or an Affiliate of any Event of Defaulta Bank. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least two Business Days after the execution thereof, (x) the assignee thereunder shall be a party hereto and to any Local Currency Addendum, if applicable, 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 Bank hereunder and under any such Local Currency Addendum and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement and under any such Local Currency Addendum (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning LenderBank’s rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunderLocal Currency Addendum).
(b) By executing and delivering an Assignment and Acceptance, the Lender Bank 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 Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any Local Currency Addendum or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower Company or any Borrowing Subsidiary or the performance or observance by the Borrower Company or any Borrowing Subsidiary of any of its obligations under this Agreement or any Local Currency Addendum or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, and any applicable Local Currency Addendum, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agent, such assigning Lender Bank or any other Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible AssigneeAssignee and, if applicable, an Eligible Local Currency Bank; (vi) such assignee appoints and authorizes each of the Administrative Agent, the Euro-Agent and any Local Currency Agent, if applicable, to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent Agent, the Euro-Agent, and any such Local Currency Agent, as applicable, by the terms hereofhereof and of any applicable Local Currency Addendum, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and of any applicable Local Currency Addendum are required to be performed by it as a LenderBank.
(c) The Administrative Agent (or a party designated by the Agent, which may include the Company or any other Borrower) shall maintain at its address referred to in Section 8.02 9.02 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 Lenders Banks and the Issuing Banks and the Commitment Amount of, and principal amount of the Advances owing to, each Lender Bank and the amount of the Letter of Credit Reimbursement Obligations owing to each Issuing Bank from time to time (the “Register”). The Agent (or its designee) shall also reflect in the Register the transfer of any portion of any Bank’s interest in the Notes, any Advances not evidenced by a Note, any Letter of Credit Reimbursement Obligation or any other obligations hereunder (collectively, the “Obligations”), and the Agent (or its designee) shall retain a copy of the assignment transferring the Obligations for the registration or transfer of the Obligations, and shall enter the names and addresses of the transferees of the Obligations. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent Agent, the Euro-Agent, any Local Currency Agent, the Banks and the Lenders may Issuing Banks shall treat each Person whose name is recorded in the Register as a Lender Bank or an Issuing Bank, as applicable, hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Borrowers or any Lender Bank at any reasonable time and from time to time upon reasonable prior notice. Solely for purposes of this Section 9.08(c) and for tax purposes only, the Agent (or its designee) shall be the Company’s agent for purposes of maintaining the Register and notations of transfer in the Register. The Obligations are registered obligations and the right, title and interest of any Bank or Issuing Bank and/or its assignees in and to such Obligations shall be transferable only upon notation of such transfer in the Register (and each Note shall expressly so provide). This Section 9.08(c) shall be construed so that the Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related Treasury Regulations.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Bank and an assignee representing that (x) it is an Eligible Assignee, and, (y) in the Administrative case of an assignment of rights and obligations under a Local Currency Addendum, representing that it is (or its Affiliate, branch or agency which will be the Local Currency Bank is) an Eligible Local Currency Bank under the terms of such Local Currency Addendum, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC-1 hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerBorrowers.
(e) Each Lender Bank may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement and, on a percentage basis equal to the percentage of the Commitment so participated, any applicable Local Currency Addendum (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsthe Letter of Credit Participations and Note or Notes held by it); provided provided, however, that (i) such LenderBank’s obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) and any applicable Local Currency Addendum shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the Borrowerholder of any such Note and Letter of Credit Participations and the maker of any Advance for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent, the Euro-Agent, any Issuing Bank, any Local Currency Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank’s rights and obligations under this Agreement Agreement, and (ivv) any agreement between such Lender Bank and any participant in connection with such participating interest shall retain the sole not restrict such Bank’s right to approve, without the consent of agree to any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any applicable Local Currency Addendum, other than or any such amendment, modification or waiver with respect consent to any Advance or Commitment in which departure by any Borrower therefrom, except (to the extent such Participant has an interest that forgives principal, interest or fees or reduces participant would be affected thereby) a reduction of the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor postponement of any such Advance date fixed for payment thereof or releases any substantial portion a release of collateral, if any, securing any such Advancethe Company’s guaranty obligations pursuant to Article VIII.
(f) Any Lender Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.08, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower Borrowers furnished to such Lender Bank by or on behalf of the BorrowerBorrowers; provided that, prior to any such disclosuredisclosure of non-public information, such Bank shall have obtained the Company’s consent (which consent shall not be unreasonably withheld or delayed) and, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrower Borrowers received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Bank.
(g) If Notwithstanding any Lender (i) shall make demand for payment under Section 2.11(a)other provisions set forth in this Agreement, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such LenderBank at any time may assign, as the case may becollateral or otherwise, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all any of its other rights and obligations hereunder within (including, without limitation, rights to payments of principal of and/or interest on the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required toAdvances) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance to any Federal Reserve Bank without notice to or consent of the foregoingCompany, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) thatany Borrowing Subsidiary, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting againstBank, such SPC any bankruptcythe Agent, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States Euro-Agent or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Local Currency Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 2 contracts
Sources: Multicurrency Credit Agreement (Ecolab Inc), Multicurrency Credit Agreement (Ecolab Inc)
Assignments and Participations. (a) Each Any Lender may(i) may (and in the case of clause (B) below, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gshall) shall to the extent required by such Section, assign to one or more banks Eligible Assignees or other entities an Affiliate of a Lender that is not an Eligible Assignee all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (A) except in the case of an assignment to an Eligible Assignee that is a Lender or an Affiliate of a Lender, each of the Paying Agent, each Issuing Bank and, unless a Default shall have occurred and be continuing at the time such assignment is effected, the Borrower must give their prior consent to such assignment (which consent shall not be unreasonably withheld or delayed) and (B) if the assignment is demanded by the Borrower pursuant to Section 2.17, no Default shall have occurred and be continuing at the time of such demand and such assignment and the Borrower shall have given at least five Business Days’ notice of such demand to the applicable Lender and the Paying Agent; provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more of the assigning Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the lesser of $10,000,000 or5,000,000 and 5% of the aggregate amount (or such lesser amount as shall be approved by the Paying Agent and, if lessso long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount Borrower) of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentthe Commitment being assigned, (iii) each such assignment shall be to an Eligible AssigneeAssignee or an Affiliate of a Lender, (iv) each such assignment made as a result of a demand by the Borrower pursuant to Section 2.17 shall be arranged by the Borrower after consultation with the Paying Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment (whether as a result of a demand by the Borrower pursuant to Section 2.17 or otherwise) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to each such assignment shall execute and deliver to the Administrative Paying 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 processing and recordation fee of $3,500 (which 3,500; provided, however, the Borrower shall be payable by one or more have no liability for the payment of the parties to the Assignment and Acceptance, and not such fee except that for each such assignment made as a result of a demand by the Borrower (except in the case of a demand under pursuant to Section 8.07(g))2.17, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after pay to the occurrence Paying Agent the applicable processing and during the continuance of any Event of Default. recordation fee.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, (xi) 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 or Issuing Bank, as the case may be, hereunder and (yii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the each Lender Party assignor thereunder and the each assignee thereunder confirm to and agree with each other and the other parties thereto and 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 statements, warranties or representations made in or in connection with this Agreement any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of this Agreement any Lien created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant heretothereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower General Partner, any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (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(e) 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 Administrative any 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 Administrative each Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative such Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a LenderLender or Issuing Bank, as the case may be.
(cd) The Administrative Paying Agent shall maintain at its address referred to in Section 8.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders Lender Parties and the Commitment Amount 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 conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee representing that it is an Eligible Assigneeassignee, together with any Note or Notes subject to such assignment, the Administrative Paying Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC 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 and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall, if new Notes are requested by the applicable assignee and/or assignor, execute and deliver to the Paying 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 each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such 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 hereto.
(ef) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Paying Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more banks Persons (other than any Loan Party or other entities (each, a “Participant”any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes (if any) held by it); provided provided, however, that (i) such LenderLender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent Agents and the other Lenders Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such LenderLender Party’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this Agreementany Loan Document, other than or any consent to any departure by or on behalf of any Loan Party therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate or fees payable with respect extent subject to any such Advance or Commitmentparticipation, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation, or Commitment, extends release any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such AdvanceSubsidiary Guarantor.
(fh) 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, participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided 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 relating to the Borrower Information (as defined in Section 8.10) received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance Party in accordance with legal process and other requirements of law)Section 8.10.
(gi) If Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time pledge or assign all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation the Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to Regulation A of the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by Board of Governors of the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make pursuant to this AgreementFederal Reserve System; provided that (i) nothing herein no such pledge or assignment shall constitute release a commitment by Lender Party from 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in obligations hereunder or substitute any Advance to the Granting Bank such pledgee or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or assignee for the account of such SPC to support the funding or maintenance of Advances and (ii) disclose on Lender Party as 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCparty hereto.
Appears in 2 contracts
Sources: Credit Agreement (Alliance Resource Partners Lp), Credit Agreement (Alliance Holdings GP, L.P.)
Assignments and Participations. (a) Each Lender mayThe Loan Documents shall be binding upon and inure to the benefit of the Parent Borrower, the Lenders, the Agents, all future holders of the Loans, and their respective successors and assigns, except that neither the Parent Borrower nor any other Credit Party may assign, delegate or transfer any of its rights or obligations under the Loan Documents (other than in connection with a dissolution or a transaction involving a merger, consolidation or Disposition, in each case otherwise permitted by this Agreement) without the prior written consent of the BorrowerAdministrative Agent and each Lender.
(b) In addition to its rights under Section 12.6(f), each LC Issuer and Lender shall have the Administrative Agent right to sell, assign, transfer or negotiate (which consents shall not be unreasonably withheld each an "Assignment") one hundred percent, or delayed)any lesser percentage, and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement the Loan Documents to any subsidiary or affiliate of such Lender, to any other Lender, or to any other bank, insurance company, financial institution, pension fund, mutual fund or other similar fund (including all or a portion of its Commitmenteach an "Eligible Assignee"), the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment Assignment shall be of a constant, and not a varying, percentage of all of the assigning assignor Lender’s 's rights and obligations under this Agreementthe Loan Documents, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be not less than $10,000,000 or10,000,000, if less, or the entire amount full Commitment Amount of such assignor Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire 's Commitment, (iii) unless the assignee is another Lender or a Subsidiary or affiliate of any Lender (in which case no claims may be made by such assignee pursuant to Section 3.5, 3.6, 3.7, 3.8 or 3.9, in each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver case except to the extent that the assignor Lender would otherwise have the right to do so), the Parent Borrower and the Administrative Agent, for its acceptance and recording Agent shall have consented thereto in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 writing (which consents shall not be payable by one unreasonably withheld or more of the parties to the Assignment and Acceptancedelayed and, and not by the Borrower (except in the case of a demand under Section 8.07(g))the Parent Borrower, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after upon the occurrence and during the continuance of any an Event of Default), and (iv) the assignor Lender and such assignee shall deliver to the Administrative Agent three copies of an Assignment and Acceptance Agreement executed by each of them, along with an assignment fee in the sum of $5,000 for the account of the Administrative Agent. Upon receipt of such executionnumber of executed copies of each such Assignment and Acceptance Agreement, deliverytogether with the assignment fee therefor and the Parent Borrower's and the Administrative Agent's consents to such Assignment, acceptance if required, the Administrative Agent shall record the same and recordingexecute not less than two copies of such Assignment and Acceptance Agreement in the appropriate place, from deliver one such copy to the assignor and one such copy to the assignee, and deliver one photocopy thereof, as executed, to the Parent Borrower. From and after the effective date specified in each such Assignment and AcceptanceAcceptance Agreement, (x) the assignee thereunder shall be a party hereto and shall for all purposes of this Agreement and the other Loan Documents be deemed a "Lender" and, to the extent that rights and obligations hereunder have been assigned to it pursuant to provided in such Assignment and AcceptanceAcceptance Agreement, have the rights and obligations of a assignor Lender hereunder and (y) 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 shall be released from its obligations under this Agreement and, in and the case of an other Loan Documents. The Administrative Agent shall be entitled to rely upon the representations and warranties made by the assignee under each 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 .
(although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(ac) In addition to the contraryparticipations provided for in Section 12.10(a), (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any each Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign grant participations in all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations Loan Documents to one or more banks or other entities (eachPersons, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) such Lender’s 's obligations under this Agreement and the other Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto to this Agreement and the other Loan Documents for the performance of such obligations, (iii) the BorrowerBorrowers, the Administrative Agent Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents, (iv) the granting of such participation does not require that any additional loss, cost or expense be borne by any Borrower at any time, and (v) the voting rights of any holder of any participation shall be limited to the voting rights of such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.under Section 12.1(i). -84- 91
(fd) Any No Lender mayshall, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to as between and among the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosureCredit Parties, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process Agents and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, be relieved of any of its obligations under the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one Loan Documents as a result of any Assignment or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) granting of such Lender’s Commitment, the Advances owing to it and its any participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of its rights under the Loan Documents, except that it shall be relieved of its obligations to the extent of any Advance that such Granting Bank would otherwise be obligated to make 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 Assignment of all or any part of such Advance, its rights and obligations under the Granting Bank shall be obligated to make such Advance Loan Documents pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank Section 12.6(b).
(e) Subject to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting BankSection 12.6(d). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC Lender may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying at any processing fee therefor, time or from time to time assign all or a any portion of its interests in rights under the Loan Documents to a Federal Reserve Bank, provided that any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents such assignment shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for the account of not release such SPC to support the funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public information relating to assignor from 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCobligations thereunder.
Appears in 2 contracts
Sources: Credit Agreement (Bowne & Co Inc), Credit Agreement (Bowne & Co Inc)
Assignments and Participations. (a) Each Lender may, with With the prior written consent of the BorrowerBorrower (which consent of the Borrower shall not be (x) required if (I) an Event of Default has occurred and is continuing or (II) the Assignee is a Lender, each LC Issuer an Affiliate of a Lender or an Approved Fund, or (y) other than with respect to Direct Competitors, unreasonably withheld, conditioned or delayed; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof) and the Administrative Agent (which consents consent of the Administrative Agent shall not (x) be required if the Assignee is a Lender, an Affiliate of a Lender or an Approved Fund (y) unreasonably withheld withheld, conditioned or delayed), any Lender may assign and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign delegate to one or more banks assignees (each an “Assignee”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Loans and the other entities all or a portion of its rights and obligations of such Lender hereunder and under this Agreement the other Loan Documents, in a minimum amount of $5,000,000 (including all or a portion the remaining amount of its Commitmentany Lender’s Loans, if less); provided, however, that the Borrower, the Advances owing Administrative Agent, and the Collateral Agent may continue to it deal solely and its participation directly with such Lender in Facility LCs); provided that connection with the interest so assigned to an Assignee until (i) each written notice of such assignment shall be of a constantassignment, together with payment instructions, addresses, and not a varyingrelated information including any documentation required pursuant to Section 2.19(e), percentage of all of (f) and (g) with respect to the assigning Lender’s rights Assignee, have been given to the Borrower, the Administrative Agent, and obligations under this Agreementthe Collateral Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 orBorrower, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, Collateral Agent an Assignment and Acceptance, together with fully executed and delivered by each party thereto, and (iii) the assigning Lender or Assignee has paid to the Administrative Agent for the Administrative Agent’s separate account a processing and recordation fee in the amount of $3,500 (which shall be payable by one or more of the parties 3,500. Anything contained herein to the Assignment and Acceptancecontrary notwithstanding, and not by the Borrower (except in the case payment of a demand under Section 8.07(g)), and any fees shall not be payable if required and the assignee is a Federal Reserve Bank), Assignee need not be an Eligible Transferee and (v) the consent of the Borrower shall not be required after if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the occurrence business or loan portfolio of the assigning Lender. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and during Acceptance delivered to it and a register for the continuance recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) 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, the 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. The Register shall be available for inspection by the Borrower at any Event reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall provide a copy of Default. Upon such executionthe Register to the Collateral Agent at any time and from time to time upon request of the Collateral Agent and the Collateral Agent shall be entitled to rely on the same, delivery, acceptance and recording, from to treat each Person whose name is recorded in the Register most recently received by the Collateral Agent pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.
(b) From and after the effective date specified in each that the Administrative Agent notifies the assigning Lender (with a copy to the Borrower) that it has received an executed Assignment and AcceptanceAcceptance satisfying clause (a) above and payment of the above-referenced processing fee, (xi) the assignee 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, shall have the rights and obligations of a Lender hereunder under the Loan Documents, and (yii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 8.2) and be released from its any future obligations under this Agreement and, (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 AgreementAgreement and the other Loan Documents, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(cand thereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall effect a novation between the Borrower and the Assignee; provided, however, that nothing contained herein shall release the transferor any assigning Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, that survive 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy termination of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agent, including 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 Lender’s obligations under this Agreement; (vSection 8.2(b) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required relating to be performed by it as a Lenderany period prior to the effectiveness of such assignment.
(c) The Immediately upon the Administrative Agent shall maintain at its address referred to in Section 8.02 a copy Agent’s receipt of each the required processing fee payment and the fully executed Assignment and Acceptance delivered satisfying clause (a) above, this Agreement shall be deemed to and accepted by it and a register for be amended to the recordation extent, but only to the extent, necessary to reflect the addition of the names Assignee and addresses the resulting adjustment of the Lenders Loans arising therefrom. The Loans allocated to each Assignee shall reduce such Loans of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender and who are not Direct Competitors (a “Participant”) participating interests in its Obligations, its Loans and the Commitment Amount of, other rights and principal amount interests of the Advances owing to, each that Lender from time to time (the “RegisterOriginating Lender”). The entries in ) hereunder and under the Register other Loan Documents; provided, however, that (i) the Originating Lender shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as remain a Lender hereunder “Lender” for all purposes of this Agreement. The Register shall be available for inspection by Agreement and the Borrower or any Lender at any reasonable time other Loan Documents and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneethe Participant receiving the participating interest in the Obligations, the Administrative Agent shall, if such Assignment Loans and Acceptance has been completed the other rights and is in substantially interests of the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Originating Lender may sell participations to one or more banks or other entities (each, hereunder shall not constitute a “Participant”) in Lender” hereunder or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it other Loan Documents and its participation in Facility LCs); provided that (i) such the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) such the Originating Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative Agent Agent, and the other Lenders shall continue to deal solely and directly with such the Originating Lender in connection with such the Originating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv) such no Lender shall retain transfer or grant any participating interest under which the sole Participant has the right to approveapprove any amendment to, without the or any consent of any Participant, any amendment, modification or waiver of with respect to, this Agreement or any provision of this Agreementother Loan Document, other than any except to the extent such amendmentamendment to, modification or consent or waiver with respect to this Agreement or of any Advance or Commitment other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant has an is participating, (B) reduce the interest that forgives principalrate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender, or reduces (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by the Borrower 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 rate 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 fees payable with the other Loan Documents or any direct rights as to the other Lenders, the Administrative Agent, the Borrower, its Subsidiaries, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. Each Originating Lender 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 obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such Advance disclosure is necessary to establish that such commitment, loan or Commitment, postpones any date fixed for any regularly scheduled payment other obligation is in registered form under Section 5f.103-1(c) of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethe United States Treasury Regulations.
(fe) Any Lender may, in In connection with any such assignment or participation or proposed assignment or participation pursuant participation, a Lender may, subject to this the provisions of Section 8.0711.11, disclose to the assignee all documents and information which it now or participant or proposed assignee or participant, any information hereafter may have relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)its Subsidiaries and their respective businesses.
(gf) If Any other provision in this Agreement notwithstanding, any Lender (i) shall make demand for payment may at any time create a security interest in, or pledge, all or any portion of its rights under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver and interest in this Agreement in favor of any notice to the Administrative Agent pursuant to Section 2.12 resulting Federal Reserve Bank in the suspension of certain obligations accordance with Regulation A of the Lenders with respect to Eurodollar Advances Federal Reserve Bank or (iii) does not consent to an amendment U.S. Treasury Regulation 31 CFR §203.24 or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to any other central bank having jurisdiction over such Lender, as the case may be, the Borrower may demand that and such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Federal Reserve Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, central bank may enforce such pledge or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended security interest in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCpermitted under applicable law.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Fifth Street Asset Management Inc.)
Assignments and Participations. (a) Each Lender may, ------------------------------ with the prior written consent of the Agent and, unless an Event of Default has occurred and is continuing at the time any assignment is effected in accordance with this Section 8.07, the Borrower, in each LC Issuer and the Administrative Agent (which consents shall case such approval not to be unreasonably withheld or delayed), and and, if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g) shall to the extent required 2.11 or 2.14 or a notice by such SectionLender pursuant to Section 2.12) so long as no Default shall have occurred and be continuing, upon at least 5 Business Days' notice to such Lender and the Agent, will, assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Revolving Credit Advances owing to it and its participation in Facility LCsthe Revolving Credit Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a -------- ------- constant, and not a varying, percentage of all rights and obligations under this Agreement (other than any right to make Competitive Bid Advances, Competitive Bid Advances owing to it and Competitive Bid Notes), (ii) except in the case of the assigning an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 15,000,000 or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with, and subject to the approval of, the Agent, and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement and all of the obligations of the Borrower to such Lender shall have been satisfied, (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Revolving Credit Note subject to such assignment and, a processing and recordation fee of $3,500 (which payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a -------- ------- demand by the Borrower, such recordation fee shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), and shall not be payable if an assignment made at the assignee request of the Borrower to an Eligible Assignee that is a Federal Reserve Bank)an existing Lender, and (vvii) any Lender may, without the consent approval of the Borrower shall not be required after or the occurrence and during the continuance Agent, assign all or a portion of its rights to any Event of Defaultits Affiliates. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Credit 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.
(d) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “"Register”"). The entries -------- in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, however, that (i) such Lender’s 's obligations -------- ------- under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Note, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.
(f) Each Lender (a "Granting Lender") may grant to a special purpose --------------- funding vehicle (a "SPC"), identified as such in writing from time to time by --- the Granting Lender to the Agent and the Borrower, the option to fund all or any part of any Advance that such Lender is obligated to fund under this Agreement (and upon the exercise by such SPC of such option to fund, such Lender's obligations with respect to such Advance shall be deemed satisfied to the extent of any amounts funded by such SPC); provided, however, that (i) such Lender's -------- ------- obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement (including, without limitation, Sections 2.11 and 2.14), (iv) any such Lender option granted to a SPC shall retain the sole not constitute a commitment by such SPC to fund any Advance and (v) no SPC shall have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Note, other than or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate extent subject to such grant of funding option, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any such Advance fees or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender mayother amounts payable hereunder, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose each case to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished extent subject to such Lender by or on behalf grant of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bankoption. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting BankLender). In furtherance .
(g) Any Lender 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 SPC or proposed assignee or participant or SPC, any information relating to the Borrower furnished to such Lender by or on behalf of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) Borrower; provided that, prior to any such -------- disclosure, the date that is one year and one day after assignee or participant or SPC or proposed assignee or participant or SPC shall agree to preserve the payment in full of all outstanding commercial paper or other senior indebtedness confidentiality of any SPC, Confidential Information relating to the Borrower received by it will not institute against, or join from such Lender.
(h) Notwithstanding any other person provision set forth in instituting againstthis Agreement, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States Lender may at any time create a security interest in all or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests rights under this Agreement (including, without limitation, the Advances owing to it and any Note or Notes held by it) in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 favor of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(h) may not be amended Federal Reserve Bank in any manner which adversely affects a Granting Bank or an SPC without accordance with Regulation A of the written consent Board of such Granting Bank or SPCGovernors of the Federal Reserve System.
Appears in 2 contracts
Sources: Credit Agreement (Agilent Technologies Inc), 364 Day Credit Agreement (Agilent Technologies Inc)
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender maymay assign and delegate all or any portion of its rights and duties under the Loan Documents (including its Commitments and the Obligations owed to it) to one or more assignees who are permitted to be lenders hereunder pursuant to applicable law, rule, or regulation (including any rules or regulations promulgated by any Gaming Authority or any Liquor Authority (as the case may be)) (each, an “Assignee”), with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) of Agent.
(ii) Assignments shall be subject to the extent required by such Section, assign following additional conditions:
(A) no assignment may be made to one a Loan Party or more banks or other entities all an Affiliate of a Loan Party or a portion natural person,
(B) the amount of its the Commitments and the other rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignmentassignment is delivered to Agent) shall be in no event be less than a minimum amount (unless waived by Agent) of $10,000,000 or500,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, if lessan Affiliate of any Lender, the entire amount or a Related Fund of such Lender’s CommitmentLender or (II) a group of new Lenders, and shall be each of which is an integral multiple Affiliate of $1,000,000 each other or a Related Fund of such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, new Lender to the extent that rights and obligations hereunder have been the aggregate amount to be assigned to it pursuant to all such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(cnew Lenders is at least $500,000)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.;
Appears in 2 contracts
Sources: Credit Agreement (Nevada Gold & Casinos Inc), Credit Agreement (Nevada Gold & Casinos Inc)
Assignments and Participations. (a) Each Lender Bank may, with upon obtaining the prior written consent of the Borrower, each LC Issuer and the Administrative Agent Company (which consents consent shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning LenderBank’s rights and obligations under this Agreementso assigned, (ii) the amount of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) may be in the amount of such Bank’s entire Commitment but otherwise shall in no event not be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentunless the Company and the Agent otherwise consent, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of 3,000; and provided, further, that, notwithstanding the parties to the Assignment and Acceptanceforegoing, and not by the Borrower (except in the case of a demand under Section 8.07(g))each Bank may, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) without the consent of the Borrower shall not be required after Company and without the occurrence payment of the processing and during recordation fee, assign to one or more Affiliates of such Bank all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the continuance of any Event of DefaultAdvances owing to it and the Note or Notes held by it). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least two Business Days after the execution thereof, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender Bank hereunder and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning LenderBank’s rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, the Lender Bank 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 Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower Company or the performance or observance by the Borrower Company of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agent, such assigning Lender Bank or any other Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 9.02 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 Lenders Banks and the Commitment Amount of, and principal amount of the Advances owing to, each Lender Bank from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerCompany, the Administrative Agent and the Lenders Banks may treat each Person whose name is recorded in the Register as a Lender Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Company or any Lender Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Bank and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerCompany.
(e) Each Lender Bank may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) such LenderBank’s obligations under this Agreement (including, without limitation, its Commitment to the Company hereunder) shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the Borrowerholder of any such Note and the maker of any Advance for all purposes of this Agreement, (iv) the Company, the Administrative Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank’s rights and obligations under this Agreement Agreement, and (ivv) any agreement between such Lender Bank and any participant in connection with such participating interest shall retain the sole not restrict such Bank’s right to approve, without the consent of agree to any Participant, any amendment, modification amendment or waiver of any provision of this Agreement, other than or any such amendment, modification or waiver with respect consent to any Advance or Commitment in which departure by the Company therefrom, except (to the extent such Participant has an interest that forgives principal, interest or fees or reduces participant would be affected thereby) a reduction of the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor postponement of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancedate fixed for payment thereof.
(f) Any Lender Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.08, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower Company furnished to such Lender Bank by or on behalf of the BorrowerCompany; provided that, prior to any such disclosuredisclosure of non-public information, such Bank shall have obtained the Company’s consent (which consent shall not be unreasonably withheld or delayed) and, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrower Company received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Bank.
(g) If Notwithstanding any Lender (i) shall make demand for payment under Section 2.11(a)other provisions set forth in this Agreement, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such LenderBank at any time may assign, as the case may becollateral or otherwise, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all any of its other rights and obligations hereunder within (including, without limitation, rights to payments of principal of and/or interest on the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required toAdvances) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance to any Federal Reserve Bank without notice to or consent of the foregoingCompany, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 2 contracts
Sources: Credit Agreement (Ecolab Inc), Credit Agreement (Ecolab Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.07, 2.11, 3.08 or 4.02, upon at least 10 days’ notice to such Lender and the Agent) shall to the extent required by such Sectionwill, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion portion, respectively, of its Commitment, the Advances owing to it it, its Issuing Commitment and its participation participations in Facility LCsLetter of Credit Liability and Swing Line Advances); provided provided, however, that (i) each such respective assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement in respect of the assigning Lender’s rights Commitment, Advances, its Issuing Commitment and obligations under this Agreementparticipations in Letter of Credit Liability and Swing Line Advances, that is constant and not varying over time, (ii) the respective amounts of the rights and obligations under the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such partial assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 5,000,000 (or an integral multiple of $1,000,000 or such Lender’s entire Commitment500,000 in excess thereof), (iii) except during the continuance of a Default, each such assignment shall be to an Eligible AssigneeAssignee consented to by the Borrower (following reasonable advance written notice to the Borrower, which consent shall not be unreasonably withheld); provided, that, the Borrower’s consent need not be obtained if such assignment is made to another Lender or to an Affiliate of the assigning Lender, provided that any Lender so assigning to any of its Affiliates shall give prompt notice thereof to the Borrower and the Agent, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 10.07(a) shall be arranged by the Borrower (at its expense, including, without limitation, payment of the processing and recordation fee referred to in subclause (vii) hereof) after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments which together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 10.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) each such assignment shall be consented to by each Issuing Bank and the Agent (which consent of the Agent shall not be unreasonably withheld) and (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which 3,500; provided, that, no such fee shall be payable in connection with an assignment by one or more an assigning Lender to an Affiliate of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Defaultsuch assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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, any LC Subsidiary, any Subsidiary Borrower or any other Loan Party or the performance or observance by the Borrower, any LC Subsidiary, any Subsidiary Borrower or any other Loan Party of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 6.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative Agent, any Issuing Bank, 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent or the respective Issuing Bank to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent or such Issuing Bank 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 10.02 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time and the names and addresses and the Issuing Commitments of each Issuing Bank from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerBorrower and the Issuing Banks.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCs)it; provided provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the owner of any Advance for all purposes of this Agreement, and (iv) the Borrower, the Administrative Issuing Banks, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, provided, further, that, to the extent of any such participation (unless otherwise stated therein and subject to the preceding proviso), the purchaser of such participation shall, to the fullest extent permitted by law, have the same rights and benefits hereunder as it would have if it were Lender hereunder; and provided, further, that each such participation shall be granted pursuant to an agreement providing that the purchaser thereof shall not have the right to consent or object to any action by the selling Lender (iv) such Lender who shall retain the sole right to approve, without the consent such right) other than an action which would (i) reduce principal of or interest on any ParticipantAdvance, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver amount due hereunder with respect to any Advance the Letters of Credit or Commitment other amounts or fees in which such Participant purchaser has an interest that forgives principalinterest, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones (ii) postpone any date fixed for any regularly scheduled payment of principal of, of or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing on any such Advance, such amounts due with respect to Letters of Credit or other amounts or such fees, (iii) extend the Termination Date or (iv) release the Borrower as a guarantor under Section 4.05.
(f) Any Upon written request of the Borrower to a Lender, such Lender mayshall, 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 extent consistent with the Borrower furnished to such Lender by or on behalf policies of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, inform the Borrower may demand of the Dollar amount of any Full Term Participation (as hereinafter defined) that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmenthas entered into; provided, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lenderhowever, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such that no Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make disclose such Advance information if the disclosure thereof would constitute a violation of law or regulation or violate any confidentiality agreement to which such Lender is subject. For the purposes of this subsection (f), “Full Term Participation” means a participation by a Lender to another Person whereby such other Person has purchased (pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreementa participation agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance such Lender’s Commitment from the effective date of such participation agreement to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCTermination Date.
Appears in 2 contracts
Sources: Credit Agreement (Gap Inc), Credit Agreement (Gap Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such SectionAgent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including without limitation all or a portion of its Commitment, the Advances Term Loan owing to it and its participation in Facility LCsit); provided that that:
(i) no such assignment or transfer results in more than 5 (five) Non-Qualifying Banks being Lenders under this Agreement;
(ii) in the case of each such assignment shall be (except in the case of an assignment to a constantPerson that, and not immediately prior to such assignment, was a varying, percentage Lender or an assignment of all of the assigning a Lender’s rights and obligations under this Agreement), (ii) the Commitment Amount amount of the Term Loan of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, €5,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, €500,000 in excess thereof;
(iii) each such assignment shall be to an Eligible Assignee, ;
(iv) the proposed assignment (if other than an assignment by a Lender to an Affiliate of such Lender that is a Qualifying Bank) shall be approved by (x) the Administrative Agent, such approval by the Administrative Agent not to be unreasonably withheld or delayed, and (y) if no Default then exists, the Borrower, such approval by the Borrower not to be unreasonably withheld or delayed; provided, however, consent by the Borrower shall not be deemed to be unreasonably withheld if such assignment would result in Rabobank’s Pro Rata Share of the Term Loan being less than fifty percent (50%) of the total of the aggregate outstanding principal amount of the Term Loan; and
(v) the parties to each such assignment shall execute and deliver to the Administrative AgentAgent for its own account, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of U.S. $3,500 (which shall be 3,500, payable by the assignee to the Administrative Agent (with only one such fee payable in connection with contemporaneous assignments pursuant to the same Assignment and Acceptance to or by two or more Approved Funds of the parties to the a single Lender). Such Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and Acceptance shall not be payable if indicate whether the assignee is a Federal Reserve Qualifying Bank or Non-Qualifying Bank as of such date.
(b) An assignment, or transfer in relation to a Term Loan will only be effective if made in accordance with this Section 10.7 and the new Lender has given the confirmation required pursuant to Section 3.3. If the new Lender is not a Qualifying Bank), and (v) there are reasonable concerns that the consent of Swiss Federal Tax Administration could look through such Lender and as a result not accept such Lender as one Non-Qualifying Bank Lender only, the Borrower shall not may, prior to consenting to the assignment or transfer, require that such new Lender provide to it a written confirmation signed by the Swiss Federal Tax Administration confirming that such new Lender is considered by the Swiss Federal Tax Administration to be required after the occurrence and during the continuance of any Event of Default. one Non-Qualifying Bank.
(c) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, :
(xi) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder or under any other Loan Document have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender hereunder and hereunder; and
(yii) 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 under each other Loan Document (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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bd) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; ;
(iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 3.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; ;
(iv) 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 confirms that it is an Eligible Assignee; Assignee or an Affiliate of the assignor;
(vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and ;
(vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender;
(viii) that the benefit of the security interests and guarantees attached to the rights being assigned shall be transferred to the benefit of the assignee upon the completion of such assignment;
(ix) such assignee confirms, represents and warrants that its designation as either a Qualifying Bank or a Non-Qualifying Bank provided in the Assignment and Acceptance is true and correct; and
(x) such assignee agrees to permit the Borrower to disclose its identity to the Swiss Federal Tax Administration.
(ce) The Administrative Agent shall maintain at its address referred to in Section 8.02 10.2 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 Lenders Lenders, their respective Commitments, and the Commitment Amount of, and principal amount of the Advances Term Loan owing to, to each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(df) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneeassignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, A hereto:
(i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and Register; and
(iiiii) give prompt notice thereof to the Borrower.
(eg) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including without limitation all or a portion of its Commitment, rights in the Advances owing Term Loan) to it and its participation in Facility LCsa financial institution (a “Participant”); provided that 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and Agreement;
(iv) the relationship between the Lender and the Participant is that of a debtor and creditor (including in the event of the bankruptcy or similar event of the Lender or a Borrower);
(v) the Participant will have no proprietary interest in the benefit of this Agreement or in any monies received by the Lender under or in relation to this Agreement;
(vi) the Participant will under no circumstances (other than pursuant to an assignment permitted under Section 10.7) be subrogated to, or substituted in respect of, the Lender’s claims under this Agreement;
(vii) the Participant will under no circumstances (other than pursuant to an assignment permitted under Section 10.7) otherwise have any contractual relationship with, or rights against, the Borrower under or in relation to this Agreement; and
(viii) the terms of such Lender participation agreement with a Participant (including any sub-participant), shall retain the sole right to approveinclude provisions, without the consent in respect of any Participantsub-participations, any amendment, modification or waiver of any provision identical to the provisions of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such AdvanceSection 10.7(g) mutatis mutandis.
(fh) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.0710.7, disclose to the assignee or participant Participant or proposed assignee or participantParticipant, any public information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior Borrower and any information conspicuously labeled by the Borrower as being confidential at the time such information is furnished to any such disclosure, the Lender if such assignee or participant Participant or proposed assignee or participant shall agree Participant has agreed to preserve the confidentiality of any confidential use reasonable efforts to keep such information relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)confidential.
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to Notwithstanding any other Eligible Assignee provision set forth in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained hereinAgreement, any Lender (may at any time create a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such security interest in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part portion of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation its rights under this Agreement (all liability for which shall remain with including without limitation the Granting Bank). In furtherance portion of the foregoing, each party hereto hereby agrees (which agreement shall survive Term Loan owing to it) in favor of any Federal Reserve Bank in accordance with Regulation A of the termination Board of this Agreement) that, prior to Governors of the date Federal Reserve System and any Lender that is one year and one day after the payment in full of a fund may pledge all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance rights under this Agreement (including without limitation the portion of the Term Loan owing to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayedit) 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 trustee in support of its obligations to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCits trustee.
Appears in 2 contracts
Sources: Credit Agreement (Agco Corp /De), Credit Agreement (Agco Corp /De)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event be less than $10,000,000 1,000,000 or, if less, the entire amount of such Lender’s CommitmentCommitment Amount, and shall be an integral multiple of $1,000,000 500,000 or such Lender’s entire CommitmentCommitment Amount, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AcceptanceAssumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and AcceptanceAssumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AcceptanceAssumption, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Acceptance Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund, and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer Borrower or the Administrative Agent, and without any requirement to have an Assignment and Acceptance Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, . For 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible AssigneeSection 8.07(a), the Administrative Agent shall, if such Assignment terms “Approved Fund” and Acceptance has been completed and is in substantially “Ineligible Institution” have the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.following meanings:
Appears in 2 contracts
Sources: Credit Agreement (Atlantic City Electric Co), Credit Agreement (Atlantic City Electric Co)
Assignments and Participations. (a) Each Lender may, with the prior written consent of Exelon, the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the a Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and it, its participation in Facility LCsLCs and any Note or Notes held by it); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 5,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative 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 processing and recordation fee of $3,500 4,000 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))any Borrower, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower Exelon shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the BorrowerExelon, the LC Issuers Issuer and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of Exelon, the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement and any Note to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 any Borrower or the performance or observance by the any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing by each Borrower to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the each Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the any Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with all Notes, if any, subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerBorrowers.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and it, its participation in Facility LCsLCs and any Note or Notes held by it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the Borrowerholder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this AgreementAgreement or any Note held by such Lender, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 Borrowers furnished to such Lender by or on behalf of the BorrowerBorrowers; provided 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 relating to the Borrower Borrowers received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) any Lender shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, or (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority LendersRate Advances, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the applicable Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower Borrowers may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower Borrowers and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower Borrowers shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower Borrowers shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the BorrowerBorrowers, the option to provide to the any Borrower all or any part of any Advance that such Granting Bank 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 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance Advances to the Granting Bank or to any financial institution institutions (consented to by the such Borrower and Administrative Agent, neither of which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 2 contracts
Sources: Credit Agreement (Exelon Corp), Credit Agreement (Commonwealth Edison Co)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and (following a demand by such Lender pursuant to Section 2.10 or 2.12) upon at least five Business Days' notice to such Lender and the Administrative Agent (which consents shall not be unreasonably withheld or delayed)Agent, and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, will assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more Facilities, (ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender’s , an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender's rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or1,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, if lessso long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentBorrower), (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance (other than as to assignments to then existing Lenders and/or their Affiliates) and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and together with a processing and recordation fee in the amount of $3,500 3,500; provided, however, that the processing and recordation fee set forth in sub-clause (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and iv) above shall not be payable if (A) with respect to an assignment by any Lender Party to an Affiliate or an Approved Fund of such Lender Party, or (B) with respect to an assignment (x) which is both by and to an existing Lender Party or (y) with a stated effective date occurring prior to the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required 90th day after the occurrence and during the continuance of any Event of Default. Effective Date hereof.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, (xi) 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 or an Issuing Bank, as the case may be, hereunder and (yii) the Lender or an Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s 's or an Issuing Bank's rights and obligations under this Agreement, such Lender or such Issuing Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the each Lender Party assignor thereunder and the each assignee thereunder confirm to and agree with each other and the other parties thereto and 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 statements, warranties or representations made in or in connection with this Agreement any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of this Agreement any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant heretothereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (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(e) 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 Administrative any 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 Administrative each Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative such Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a LenderLender or an Issuing Bank, as the case may be.
(cd) The Administrative 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 Lenders Lender Parties and the Commitment Amount under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the “Register”"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee representing that it is an Eligible Assigneeassignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC 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 and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative 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 each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such 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 hereto.
(ef) Each Issuing Bank may assign to an Eligible Assignee all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that each such assignment shall be to an Eligible Assignee and the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance.
(g) Each Lender Party may sell participations to one or more banks Persons (other than any Loan Party or other entities (each, a “Participant”any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes (if any) held by it); provided provided, however, that (i) such Lender’s Lender Party's obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent Agents and the other Lenders Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such Lender’s Lender Party's rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this Agreementany Loan Document, other than or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate or fees payable with respect extent subject to any such Advance or Commitmentparticipation, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation, or Commitment, extends any Commitment, releases any guarantor release all or substantially all of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethe Collateral.
(fh) 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, participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided 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 relating to the Borrower Confidential Information received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Party.
(gi) If 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 (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation the Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment Regulation A of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance Board of Governors of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCFederal Reserve System.
Appears in 2 contracts
Sources: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (neither of which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gsubsection (g) hereof shall to the extent required by such Sectionsubsection (g), assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s 's rights and obligations under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s 's Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s 's entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative 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 processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))Borrower, and shall not be payable if the assignee is a Bank, any Affiliate of any Bank or the Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer Borrower or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement and its Notes to a Federal Reserve Bank, provided that no such assignment shall does not release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance and each Additional Lender Supplement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC 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 Administrative 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 pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder, a new Note 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 hereto.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “"Participant”") in or to all or a portion of its rights and/or obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) such Lender’s 's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (ivv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this AgreementAgreement or the Note or Notes held by such Lender, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) any Lender shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, or (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Rate Advances or (iii) does not shall fail to consent to, or shall revoke its consent to, the extension of any Termination Date pursuant to an amendment Section 2.16 or waiver that requires (iv) shall fail to consent to, or shall revoke its consent to, any extension of the consent of all Lenders and has been approved "Termination Date" (as defined in the 364-Day Credit Agreement) requested by the Majority LendersBorrower pursuant to Section 2.16 of the 364-Day Credit Agreement as originally constituted (or any successor provision of similar import), then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) ), or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) ), or (in the case of clause clauses (iii) and (iv)), within 60 ) no later than 10 days after prior to the date a draft of the applicable amendment or waiver was delivered to such Lenderthen effective Termination Date, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, 's Commitment and the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 daysdays (in the case of clause (i) or clause (ii)), or within the next succeeding 5 days (in the case of clauses (iii) and (iv)) . If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs's Commitment or Advances, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Bank”") may grant to a special purpose funding vehicle (an “"SPC”"), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.078.07(h), any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance Advances to the Granting Bank or to any financial institution institutions (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such the Granting Bank or SPCBank.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Peco Energy Co), Revolving Credit Agreement (Peco Energy Co)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer upon at least five Business Days’ notice to such Lender and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such SectionAgent, assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of any or all of the assigning Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments or Advances being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, if lessso long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentBorrowers), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative 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 processing and recordation fee of $3,500 3,500.
(which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (vb) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, (xi) 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 or Issuing Bank, as the case may be, hereunder and (yii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the each Lender Party assignor thereunder and the each assignee thereunder confirm to and agree with each other and the other parties thereto and 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 statements, warranties or representations made in or in connection with this Agreement any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of this Agreement any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant heretothereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (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(e) 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 Administrative any 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 Administrative each Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative such Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a LenderLender or Issuing Bank, as the case may be.
(cd) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, 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 Lenders Lender Parties and the Commitment Amount 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 conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent Agents and the Lenders may Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Borrowers or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(de) Notwithstanding anything to the contrary contained in clause (b) above, the Advances (including the Notes evidencing such Advances) are registered obligations and the right, title, and interest of the Lender Parties and their assignees in and to such Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender Party’s or an assignee’s right title and interest in and to the related Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as the Borrowers’ agent for purposes of maintaining such notations of transfer in the Register.
(f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee representing that it is an Eligible Assigneeassignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the Borrowercase of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Commitment retained by it hereunder. Such amended and restated 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 hereto.
(eg) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500.
(h) Each Lender Party may sell participations to one or more banks Persons (other than any Loan Party or other entities (each, a “Participant”any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including all or a portion of its CommitmentCommitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes (if any) held by it); provided provided, however, that (i) such LenderLender Party’s obligations under this Agreement (including its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the Borrowerholder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent Agents and the other Lenders Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such LenderLender Party’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this Agreementany Loan Document, other than or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, modification waiver or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces consent requires the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment consent of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advanceall Lender Parties.
(fi) 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, participant any information relating to the Borrower Borrowers furnished to such Lender Party by or on behalf of the BorrowerBorrowers; provided 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 relating to the Borrower Confidential Information received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance Party in accordance with legal process and other requirements the terms of law)Section 8.10.
(gj) If 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 (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, including the Advances owing to it and its participation the Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such periodRegulation A of the Board of Governors of the Federal Reserve System.
(hk) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.
(l) Notwithstanding anything to the contrary contained herein, any Lender Party (a “Granting BankLender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank Lender to the Administrative Agent and the Borrower, BMCA (an “SPC”) the option to provide to the Borrower all or any part of any Advance that such Granting Bank Lender would otherwise be obligated to make pursuant to this Agreement; , provided that (i) nothing herein shall constitute a commitment by any SPC to make fund any Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to provide make all or any part of such Advance, the Granting Bank 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 Commitment of the Granting Bank Lender to the same extent, and as if, such Advance were made by such Granting BankLender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which a Lender Party would be liable, (ii) no SPC shall remain with be entitled to the benefits of Sections 2.10 and 2.12 (or any other increased costs protection provision) and (iii) the Granting Bank)Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency insolvency, or liquidation proceedings proceeding under the laws of the United States or any State thereof. In addition, notwithstanding Notwithstanding anything to the contrary contained in this Section 8.07Agreement, any SPC may (i) with notice to, but without the prior written consent of, the Borrower BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or a any portion of its interests interest in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Advances to any rating agency, commercial paper dealer or provider of any surety, surety or guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(hsubsection (k) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the prior written consent of each Granting Lender, all or any part of whose Advances are being funded by the SPC at the time of such Granting Bank or SPCamendment.
Appears in 2 contracts
Sources: Revolving Credit Agreement (BMCA Acquisition Sub Inc.), Revolving Credit Agreement (Building Materials Manufacturing Corp)
Assignments and Participations. (a) Each This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender mayand their respective successors and assigns; provided, with however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Borrower, each LC Issuer Lenders' prior written consent shall be null and void.
(b) Each Lender may with the written consent of the Administrative Agent and the Administrative Agent Borrower (which consents shall such consent of the Administrative Borrower not to be unreasonably withheld or delayed), delayed and shall be deemed given if demanded not denied in writing by the Administrative Borrower pursuant to Section 8.07(g) shall to the extent required by such Sectionwithin 10 days after receipt of written request therefor), assign to one or more banks other lenders or other entities all or a portion of its rights and obligations under this Agreement (including with respect to all or a portion of its CommitmentCommitment and any Loan made by it; provided, the Advances owing to it and its participation in Facility LCs); provided however, that (i) each such assignment shall be of is in an amount which is at least $3,000,000 or a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 in excess thereof (or such lesser amount as may be agreed to by the Collateral Agent in its sole discretion) (except such minimum amount shall not apply to an assignment by a Lender to (x) a Lender’s entire Commitment, an Affiliate of such Lender or a Related Fund of such Lender or (y) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $3,000,000 or a multiple of $1,000,000 in excess thereof), (iii) each such assignment shall be to an Eligible Assignee, (ivii) the parties to each such assignment shall execute and deliver to the Collateral Agent (with a copy to the Administrative Agent), for its acceptance and recording in the Registeracceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower 5,000 (except in the case payment of a demand under Section 8.07(g)), and such fee shall not be payable required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender), (iii) no written consent of the Administrative Borrower shall be required if an Event of Default has occurred and is continuing, (iv) no written consent of the assignee Administrative Borrower shall be required in connection with any assignment (A) by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) if such assignment is a Federal Reserve Bank)in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender, and (v) the consent no such assignment shall be made to any Loan Party or any of the Borrower shall not be required after the occurrence its Affiliates. The cost and during the continuance expense of any Event of Defaultsuch assignment shall be borne by the assigning Lender (and not by any Loan Party). Upon such execution, delivery, acceptance delivery and recordingacceptance, from and after the effective date specified in each Assignment and AcceptanceAcceptance and recordation on the Register, which effective date shall be at least 3 Business Days after the delivery thereof to the Collateral Agent (or such shorter period as shall be agreed to by the Collateral Agent and the parties to such assignment), (xA) the assignee thereunder shall be become a party hereto "Lender" hereunder and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder Acceptance and (yB) the assigning 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the assigning 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 Acceptance, such the 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 Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or any of its Subsidiaries or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agentassigning Lender, such assigning Lender any Agent 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 AgreementAgreement and the other Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent Agents to take such action as agent agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agents by the terms hereofhereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (viivi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(cd) The Administrative Agent shall maintain shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at its address referred to in Section 8.02 the Payment Office, a copy of each Assignment and Acceptance delivered to and it that has been accepted by it the Collateral Agent and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Commitment Amount Commitments of, and the principal amount of the Advances owing to, each Lender from time to time Loans (and stated interest thereon) (the “Register”"Registered Loans"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower or and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt by the Administrative Agent of an a completed Assignment and Acceptance executed that has been accepted by the Collateral Agent pursuant to Section 12.07(b) (which consent of the Collateral Agent must be evidenced by the Collateral Agent's execution of an assigning Lender acceptance to such Assignment and an assignee representing that it is an Eligible AssigneeAcceptance), the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) shall record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerRegister.
(ef) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(g) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the "Participant Register"); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agents (in their capacity as Agents) shall have no responsibility for maintaining a Participant Register. A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(h) Any Person that is a resident in a jurisdiction outside of the United States for tax purposes who purchases or is assigned or participates in any portion of such Registered Loan shall, at the time such Person is claiming the benefits under Section 2.09, comply with any requirements described in Section 2.09(d) at the time such Person is claiming the benefits under Section 2.09.
(i) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender's obligations under this Agreement (including all or a portion of without limitation, its Commitment, Commitments hereunder) and the Advances owing to it and its participation in Facility LCs); provided that (i) such Lender’s obligations under this Agreement other Loan Documents shall remain unchanged, ; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) and the BorrowerBorrowers, the Administrative Agent Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents; and (iviii) a participant shall not be entitled to require such Lender shall retain to take or omit to take any action hereunder except (A) action directly effecting an extension of the sole right to approvematurity dates or decrease in the principal amount of the Loans, without (B) action directly effecting an extension of the consent due dates or a decrease in the rate of any Participant, any amendment, modification interest payable on the Loans or waiver of any provision of the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other than Loan Document). The cost and expense of any such amendment, modification or waiver sale of a participation shall be borne by the Lender selling such participation (and not by any Loan Party). The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, the Commitments and the Loans as if any, securing any such Advanceit was a Lender.
(fj) Any Lender maymay at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a "Securitization"); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all rating of its other rights and obligations hereunder within Loans or the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodSecuritization.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 2 contracts
Sources: Financing Agreement (Angie's List, Inc.), Financing Agreement (Angie's List, Inc.)
Assignments and Participations. (a) No Borrower may assign any of its rights or obligations hereunder or under the Notes without the prior consent of all of the Banks and the Administrative Agent.
(b) Each Lender mayBank may assign any of its Loans, its Notes, and its Commitment (but only with the prior written consent of the BorrowerAdministrative Agent, each LC Issuer and the Administrative Agent (which consents shall consent will not be unreasonably withheld or delayed)withheld, and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCseach Borrower); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be any assignments to an Eligible Assignee, such consent of each Borrower will not be unreasonably withheld; (ii) no such consent of each Borrower shall be required if an Event of Default under clause (a), (e) or (f) of Section 9 hereof has occurred and is continuing; (iii) unless each Borrower shall otherwise consent, any such partial assignment shall be in an amount at least equal to $5,000,000; and (iv) the parties to each such assignment by a Bank of its Loans, Notes or Commitment shall execute be made in such manner so that the same portion of its Loans, Notes and deliver Commitment is assigned to the respective assignee. Upon execution and delivery by the assignee to each Borrower and the Administrative 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 Loans specified in such instrument, and upon consent thereto by each Borrower and the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptanceextent required above, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto andhave, to the extent that of such assignment (unless otherwise provided in such assignment with the consent of each Borrower and the Administrative Agent), the obligations, rights and obligations benefits of a Bank hereunder have been holding the Commitment and Loans (or portions thereof) assigned to it pursuant (in addition to the Commitment and Loans, if any, theretofore held by such Assignment assignee) and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights and be released from the Commitment (or portion thereof) so assigned. Upon each such assignment (other than assignment pursuant to Section 2.04(c) or 2.11 hereof), the assigning Bank shall pay the Administrative Agent an assignment fee of $3,500.
(c) A Bank may sell or agree to sell to one or more other Persons a participation in all or any part of any Loans held by it, or in its obligations Commitment, in which event each purchaser of a participation (a “Participant”) shall not, except as otherwise provided in Section 4.07(c) hereof, have any other rights or benefits under this Agreement and, or any Note (the Participant’s rights against such Bank in respect of such participation to be those set forth in the case agreements executed by such Bank in favor of an Assignment the Participant). All amounts payable by the Company to any Bank under Section 5 hereof in respect of Loans held by it, and Acceptance covering all its Commitment, shall be determined as if such Bank had not sold or agreed to sell any participations in such Loans and Commitment, and as if such Bank were funding each of such Loan and Commitment in the remaining same way that it is funding the portion of an assigning Lender’s rights such Loan and obligations under this Agreement, Commitment in which no participations have been sold. In no event shall a Bank that sells a participation agree with the Participant to take or refrain from taking any action hereunder except that such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to Bank may agree with the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any timeParticipant that it will not, without the consent of the BorrowerParticipant, agree to (i) increase or extend the term, or extend the time or waive any requirement for the reduction or termination, of such Bank’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the related Loan or Loans or any portion of any fee hereunder payable to the Participant, (iii) reduce the amount of any such payment of principal, (iv) reduce the rate at which interest is payable thereon, or any fee hereunder payable to the Participant, to a level below the rate at which the Participant is entitled to receive such interest or fee or (v) alter the terms of Section 9(g) hereof.
(d) In addition to the assignments and participations permitted under the foregoing provisions of this Section 11.06, any LC Issuer Bank may (without notice to or consent of the Company, the Administrative Agent, Agent or any other Bank and without payment of any requirement fee)
(i) assign and pledge all or any portion of its Loans and its Notes to have an Assignment any Federal Reserve Bank as collateral security pursuant to Regulation A and Acceptance executed, any Operating Circular issued by such Federal Reserve Bank and (ii) assign all or any part portion of its rights under this Agreement and its Loans and its Notes to a Federal Reserve Bank, provided that no an affiliate. No such assignment shall release the transferor Lender assigning Bank from any of its obligations hereunder.
(be) By executing and delivering an Assignment and Acceptance, 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 Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to A Bank may furnish 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 or information concerning 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) Subsidiaries in the possession of 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(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender Bank from time to time to assignees and participants (the “Register”including prospective assignees and participants). The entries in the Register shall be conclusive and binding for all purposes, absent manifest errorsubject, and the Borrowerhowever, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(eprovisions of Section 11.12(b) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancehereof.
(f) Any Lender may, Anything 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything 11.06 to the contrary contained hereinnotwithstanding, no Bank may assign or participate any Lender (a “Granting Bank”) may grant interest in any Loan held by it hereunder to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the any Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 its affiliates or otherwise fails to provide all or any part of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but Subsidiaries without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCeach Bank.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (American General Finance Inc), 364 Day Credit Agreement (American General Finance Corp)
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender maymay assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Revolver Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not be unreasonably withheld or delayed)) of:
(A) Borrowers; provided, that no consent of Borrowers shall be required (1) if an Event of Default has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Borrowers shall be deemed to have consented to a proposed assignment unless they object thereto by written notice to Agent within five Business Days after having received notice thereof; and
(B) Agent, Swing Lender, and if demanded by Issuing Bank.
(ii) Assignments shall be subject to the Borrower pursuant following additional conditions:
(A) no assignment may be made to Section 8.07(ga natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party,
(C) the amount of the Revolver Commitments and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent required by that the aggregate amount to be assigned to all such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement new Lenders is at least $5,000,000),
(including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (iD) each such partial assignment shall be made as an assignment of a constant, and not a varying, percentage proportionate part of all of the assigning Lender’s rights and obligations under this Agreement, ,
(ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (ivE) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, Agent an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent by such Lender and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing and recordation fee in the amount of $3,500 3,500, and
(which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (vG) the consent of assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from “Administrative Questionnaire”).
(b) From and after the effective date specified in each that Agent receives the executed Assignment and AcceptanceAcceptance and, if applicable, payment of the required processing fee, (xi) the assignee 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, shall be a “Lender” and shall have the rights and obligations of a Lender hereunder under the Loan Documents, and (yii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from its any future obligations under this Agreement and, (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 AgreementAgreement and the other Loan Documents, such Lender shall cease to be a party hereto (although an and thereto); provided, that nothing contained herein shall release any assigning Lender shall continue to be entitled to indemnification pursuant to from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 8.04(c15 and Section 17.9(a)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the assignee 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 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 or any other instrument or document Loan 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 any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; , (iii) such assignee Assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender 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 confirms that it is an Eligible Assignee; (vi) such assignee Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agent, by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; , and (viivi) such assignee 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.
(cd) Immediately upon Agent’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Administrative Agent Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver 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) Borrowers, Agent, 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 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 Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder 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 Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) all amounts payable by Borrowers 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 the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent, acting solely for this purpose as an agent of Borrowers, shall maintain at its address referred to in Section 8.02 Agent’s office 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 Lenders Lenders, and the Commitment Amount Revolver Commitments of, and principal amount amounts (and stated interest) of the Advances Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent and the Lenders may shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or Borrowers and any Lender Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 2 contracts
Sources: Credit Agreement (Falcon Capital Acquisition Corp.), Credit Agreement (Falcon Capital Acquisition Corp.)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, Bank may assign to one or more banks or other entities Eligible Assignees all or a portion percentage interest of its rights and obligations under this Agreement (including all but if less than all, then such assignment shall be in an amount equal to $5,000,000 or an integral multiple thereof and such assigning Bank shall continue to hold a portion Share of its Commitmentat least $5,000,000, the Advances owing to it and its participation in Facility LCs); provided provided, that (i) no assignment by any Bank may be made to any Eligible Assignee, except with the prior written consent of (A) the Company, which consent shall not be unreasonably withheld or delayed and shall not be required (1) in the case of an assignment to a Bank, an Affiliate of a Bank or an Approved Fund, or (2) if an Event of Default shall have occurred and be continuing and (B) the L/C Issuers, which consent may be given or withheld in the sole discretion of the L/C Issuers; (ii) the L/C Issuers may not assign their direct obligations under the Letters of Credit, and (iii) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lenderassignor’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the . The parties to each such assignment shall execute and deliver to the Administrative AgentAgent an instrument of assignment in form and substance satisfactory to the Administrative Agent and the Company, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more 3,500, and the Administrative Agent will record in a register maintained for such purpose the name of the parties to assignee and the Assignment and Acceptance, and not percentage participation interest assigned by the Borrower (except in the case of a demand under Section 8.07(g)), assignor and shall not be payable if assumed by the assignee is a Federal Reserve Bank), and (v) the consent for purposes of the Borrower shall not be required after the occurrence determination of such assignor’s and during the continuance of any Event of Defaultassignee’s respective Shares. Upon such execution, delivery, fee payment, acceptance and recording, from and after the effective date specified in each Assignment and Acceptanceassignment, (x) which effective date shall be at least five Business Days after the delivery thereof to the Administrative Agent, the assignee thereunder shall be a party hereto andshall, to the extent that rights of such assignment, become a party hereto and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have all of the rights and obligations of a Lender Bank hereunder and (y) the Lender assignor thereunder shalland, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights and such assigning Bank shall 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 (although an assigning Lender hereunder but shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrarybenefits of Sections 2.08, 2.16, 8.05, 8.06 and 8.07 (A) the consent of the Borrowerwithout relieving such Bank from any liability for damages, the LC Issuers costs and the Administrative Agent shall not be required with respect to any assignment expenses suffered by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement the L/C Issuers or the Company as a result of the failure by such Bank to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of perform its obligations hereunder).
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders Each Bank may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell grant participations to one or more banks or other entities (each, a “Participant”) Persons in or to all or a portion of its any part of, or any interest (undivided or divided) in, such Bank’s rights and/or obligations under this Agreement (including all or any such Person being referred to herein as a portion of its Commitment, the Advances owing to it and its participation in Facility LCs“Participant”); provided provided, however, that (i) such LenderBank’s obligations under this Agreement shall remain unchanged, ; (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, ; (iii) in no event shall such Bank be obligated to the BorrowerParticipant to take or refrain from taking any action hereunder, except that such Bank may agree with the Participant that it will not, without the consent of the Participant, agree to (A) the extension of any L/C Expiration Date or of any date fixed for the payment of principal of or interest, fees (if the Participant is entitled to any part thereof) or any other payment (if the Participant is entitled to any part thereof) pursuant to this Agreement or the Reimbursement Obligations, (B) the reduction of any payment of principal thereof, or (C) the reduction of the rate at which either interest is payable thereon or (if the Participant is entitled to any part thereof) the reduction of the fees payable hereunder to a level below the rate at which the Participant is entitled to receive interest or such fees (as the case may be) in respect to such participation; (iv) the Company, the L/C Issuers and the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank’s rights and obligations under this Agreement Agreement; and (ivv) such Lender Participant shall retain be entitled to the sole right cost protection provisions provided for in Sections 2.08 and 2.16; provided, further, that the amount of such cost protection shall not exceed the amount of cost protection to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any Bank selling such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment would have been entitled under Section 2.11(a), 2.11(b) 2.08 or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender2.16, as the case may be. Promptly after any Bank grants any such participation, such Bank shall inform the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by Company of the Borrower and reasonably acceptable to identity of the Administrative Agent Participant and the LC Issuers all (but not less than all) amount of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodparticipation.
(hc) Notwithstanding anything to the contrary contained hereinany other provision set forth in this Agreement, any Lender (Bank may at any time create a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such security interest in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part portion of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation its rights under this Agreement (all liability for which shall remain including the Advances owed to it) in favor of any Federal Reserve Bank in accordance with the Granting Bank). In furtherance Regulation A of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination Board of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws Governors of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCFederal Reserve System.
Appears in 2 contracts
Sources: Letter of Credit and Reimbursement Agreement, Letter of Credit and Reimbursement Agreement (Commonwealth Edison Co)
Assignments and Participations. (a) Each Lender maymay sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder (including all of its rights and obligations with respect to the Term Loans, the Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that (i) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitments, such assignment (A) shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment and (B) shall be subject to the prior written consent of the BorrowerAdministrative Agent, each LC the Issuer and the Administrative Agent Swing Loan Lender (which consents consent, in each case, shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the assigning Lender’s entire interest) be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 1,000,000 or an integral multiple of $1,000,000 in excess thereof (treating multiple, simultaneous assignments by or to two or more Approved Funds which are Affiliates or share the same (or affiliated) manager or advisor as a single assignment for purposes of this clause (a)), except, in either case, (A) with the consent of the Borrower and the Administrative Agent or (B) if such Lender’s entire Commitment, assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender and (iii) each if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to an Eligible Assignee, (ivA) the prior consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) and (B) in the case of (1) an assignment with respect to the Revolving Credit Facility or (2) an assignment that causes any Person (other than Credit Suisse or an Affiliate of Credit Suisse), together with any Affiliates of such Person, to hold in excess of 35% of the principal amount of the Obligations, or such assignment is to a Person holding in excess of 35% of the principal amount of the Obligations, in each case, so long as no Default or Event of Default has occurred and is continuing, the prior consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned and which consent shall be deemed to be granted if no response is received from the Borrower within five (5) Business Days following a request for such consent). Any such assignment need not be ratable as among the Term Loan Facilities and the Revolving Credit Facility.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with and any administrative questionnaire, tax forms or other documents required by the Administrative Agent. Upon its receipt of an Assignment and Acceptance executed by the assigning Lender and the Eligible Assignee, the Lender or Eligible Assignee shall pay to the Administrative Agent a registration and processing and recordation fee of $3,500 for each assignment (which shall be payable unless otherwise agreed by one or more the Administrative Agent in its sole discretion). Subject to acceptance and recording thereof by the Administrative Agent in the Register and the receipt of the parties to the Assignment registration and Acceptance, and not by the Borrower processing fee referenced in this clause (except in the case of a demand under Section 8.07(gb)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, (xi) the assignee Eligible Assignee thereunder shall be become a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender were an Issuer, of such Issuer hereunder and thereunder, (yii) the Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notation in the Register and (iii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those surviving the payment in full of the Obligations) and be released from its obligations under this Agreement the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (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 Agreementthe Loan Documents, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time 11.8 (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 2 contracts
Sources: Credit Agreement (Knology Inc), Credit Agreement (Knology Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances Loans owing to it and its participation in Facility LCsthe Note or Notes held by it); provided that provided, however, that: -------- -------
(i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, Agreement (other than any Competitive Bid Loans or Competitive Bid Loan Notes),
(ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment other than an assignment to another Lender (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, in excess thereof,
(iii) each such assignment shall be to an Eligible Assignee, and (unless such assignment shall be to a Subsidiary of the assigning Lender or to a Subsidiary of the bank holding company of which the assigning Lender is a Subsidiary) the Borrower and the Administrative Agent shall have consented to such assignment (which consents shall not be unreasonably withheld or delayed),
(iv) after giving effect to such assignment, the assigning Lender (together with all Affiliates of such Lender) shall continue to hold no less than 25% (or, in the case of Citibank, 12.5%) of its original Commitment hereunder and of the Loans owing to it, unless the Borrower shall otherwise agree, and
(v) the parties to each such assignment shall execute and deliver to the Administrative 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 processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default2,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Credit Agreement ---------------- Lender assignor thereunder shallshall relinquish its rights and be released from its obligations under this Agreement, 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 5.01 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 Administrative Agent, any Managing Agent or Documentation 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 9.02 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 Lenders and the Commitment Amount of, and principal amount of the Advances Revolving Loans owing to, each Lender from time to time (the “"Register”"). The entries in the -------- Register shall be conclusive and binding for all purposes, Credit Agreement ---------------- absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall provide the Borrower with a copy of the Register upon request.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Loan Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC-1 hereto, (i1) accept such Assignment and Acceptance, (ii2) record the information contained therein in the Register and (iii3) 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 Administrative Agent in exchange for the surrendered Revolving Loan Note or Notes a new Revolving Loan Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and a new Revolving Loan Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Revolving Loan Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Loan 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-l hereto. Such surrendered Revolving Note or Notes shall be marked "canceled" and shall be returned promptly to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including all or including, without limitation, a portion of its Commitment, the Advances Loans owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) such Lender’s 's -------- ------- obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the parties to each such participation shall execute a participation Credit Agreement ---------------- 77 agreement in substantially the form of the Participation Agreement, and (ivvi) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment to or waiver of any provision of this Agreementany Loan Document, other than or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect to any Advance consent would alter the principal of, or Commitment interest on, the Loan or Loans in which such Participant has an interest that forgives principal, interest participant is participating or any fees or reduces other amounts payable to the interest rate Lenders hereunder, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Loans or any fees or other amounts payable hereunder. Each Lender shall provide the Borrower with a list of entities party to all Participation Agreements with such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such AdvanceLender upon request.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.07, disclose to the assignee or participant or proposed assignee or participant, any information information, including Confidential Information, relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided -------- that, prior to any such disclosuredisclosure of Confidential Information, the assignee or participant or proposed assignee or participant shall be informed of the confidential nature of such Confidential Information and shall agree to (i) preserve the confidentiality of any confidential information Confidential Information relating to the Borrower received by it from such Lender and (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements ii) be bound by the provisions of law)Section 9.10.
(g) If Notwithstanding any other provision in this Section 9.07, no Lender (i) shall make demand for payment under Section 2.11(a)may assign its interest to an Eligible Assignee if, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations as of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent effective date of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only ifassignment, such payment demanded assignment would increase the amount of taxes or increased costs payable under Section 2.11(a)Sections 2.10 or 3.03, 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodrespectively.
(h) Notwithstanding anything to the contrary contained hereinany other provision set forth in this Agreement, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from at any time to time by and without the Granting Bank to consent of the Administrative Agent and the Borrower, the option to provide to or the Borrower create a security interest in all or any part portion of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation its rights under this Agreement (all liability for which shall remain including, without limitation, the Loans owing to it and the Notes held by it) in favor of any Federal Reserve Bank in accordance with the Granting Bank). In furtherance Regulation A of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination Board of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws Governors of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may Federal Reserve System.
(i) with notice toNotwithstanding Sections 9.07(a) and (e), but without the prior written consent ofCitibank may not assign, the Borrower and the Administrative Agent and without paying any processing fee thereforor sell participations in, assign all or a any portion of its interests rights or obligations under this Agreement (including, without limitation, all or any portion of its Commitment, the Loans owing to it or the Note or Notes held by it) without the Borrower's prior consent until the date (the "Specified Date") that is the -------------- earlier of the date on which the initial Loan is made and June 30, 1997. Although Citibank may assign or sell participations in its rights and obligations hereunder (to the extent otherwise permitted hereunder) on and as of the Specified Date, Citibank's obligation hereunder to make the initial Loan in the full amount of the Commitments shall not in any Advance to the Granting Bank or to any financial institution (consented to way be affected by the Borrower and Administrative Agentoccurrence (or failure to occur) of any such assignment or participation, which consents provided that Citibank's obligation hereunder to fund the initial Loan as -------- aforesaid shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for reduced by the account amount, if any, of such SPC to support Loans actually timely made by the funding or maintenance other Lenders on the date 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 SPCthe initial Loan. This Section 8.07(h9.07(i) may not shall be amended in of no force and effect at any manner which adversely affects a Granting Bank or an SPC without time after the written consent of such Granting Bank or SPCSpecified Date.
Appears in 2 contracts
Sources: Credit Agreement (Renaissance Hotel Group N V), Credit Agreement (Marriott International Inc)
Assignments and Participations. (a) Each Lender may, may with the prior written consent of the BorrowerAgent, each LC Issuer Issuing Bank and, so long as no Event of Default has occurred and is continuing, the Administrative Agent Borrower (which consents shall not be unreasonably withheld or delayed), and and, if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.11, 2.14 or 2.20) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAgent, will assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Revolving Credit Commitment, its Unissued Letter of Credit Commitment, the Advances owing to it it, its participations in Letters of Credit and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s its rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, (x) in the entire amount case of such Lender’s an assignment of Revolving Credit Commitment, and shall be $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the case of an assignment of Unissued Letter of Credit Commitment, $5,000,000 or such Lender’s entire Commitmentan integral multiple of $1,000,000 in excess thereof, in each case unless the Agent and, if no Default has occurred and is continuing, the Borrower otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 (which payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), and shall not be payable if an assignment made at the assignee request of the Borrower to an Eligible Assignee that is a Federal Reserve Bank), an existing Lender and (vvii) the no consent of the Borrower Borrower, the Agent or any Issuing Bank shall not be required after in the occurrence and during case of an assignment to any Affiliate of the continuance assigning Lender or in the case of any Event of Defaultan assignment to a Person that, immediately prior to such assignment, was a Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (other than its rights under Sections 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of this Agreement any lien or security interest created or purported to be created under or in connection with, any Loan 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 any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement any Loan 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 financial statements referred to in Section 4.01(e) 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 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 Agreementthe Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement any Loan Document as are delegated to the Administrative Agent by the terms hereofhereof or thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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.
(d) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive prima facie evidence of the correctness thereof and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, its participation in Letters of Credit, the Advances owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the Borrowerholder of any such Note for all purposes of this Agreement, (iv) each Loan Party, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any other Loan Document, other than or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate extent subject to such participation, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advanceparticipation.
(f) Any Lender 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 Loan Parties furnished to such Lender by or on behalf of the BorrowerLoan Parties; provided 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 Borrower Information relating to the Borrower Loan Parties received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Lender.
(g) If Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation any Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment Regulation A of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance Board of Governors of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCFederal Reserve System.
Appears in 2 contracts
Sources: Credit Agreement (Packaging Corp of America), Credit Agreement (Packaging Corp of America)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded following a demand by the Borrower such Lender pursuant to Section 8.07(g2.10 or 2.12) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionPaying Agent, will assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more Facilities, (ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event be less than $10,000,000 or1,000,000 (or such lesser amount as shall be approved by the Paying Agent and, if lessso long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentBorrower), (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Paying Agent, for its acceptance (other than as to assignments to then existing Lenders and/or their Affiliates) and recording in the Register, an Assignment and AcceptanceAssumption, together with any Note or Notes subject to such assignment and together with a processing and recordation fee in the amount of $3,500 3,500; provided, however, that the processing and recordation fee set forth in sub-clause (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and iv) above shall not be payable if (A) with respect to an assignment by any Lender Party to an Affiliate or an Approved Fund of such Lender Party, or (B) with respect to an assignment (x) which is both by and to an existing Lender Party or (y) with a stated effective date occurring prior to the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required 90th day after the occurrence and during the continuance of any Event of Default. Effective Date hereof.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AcceptanceAssumption, (xi) 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 AcceptanceAssumption, have the rights and obligations of a Lender or an Issuing Bank, as the case may be, hereunder and (yii) the Lender or an Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or of the remaining portion of an assigning Lender’s or an Issuing Bank’s rights and obligations under this Agreement, such Lender or such Issuing Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and AcceptanceAssumption, the each Lender Party assignor thereunder and the each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and AcceptanceAssumption, such assigning Lender Party 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 any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of this Agreement any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant heretothereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (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(e) 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 AcceptanceAssumption; (iv) such assignee will, independently and without reliance upon the Administrative any 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 Administrative each Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative such Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a LenderLender or an Issuing Bank, as the case may be.
(cd) The Administrative Paying Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders Lender Parties and the Commitment Amount 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 conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance Assumption executed by an assigning Lender Party and an assignee representing that it is an Eligible Assigneeassignee, together with any Note or Notes subject to such assignment, the Administrative Paying Agent shall, if such Assignment and Acceptance Assumption has been completed and is in substantially the form of Exhibit AC hereto, (i) accept such Assignment and AcceptanceAssumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Paying 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 each Facility pursuant to such Assignment and Assumption and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such 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 Assumption and shall otherwise be in substantially the form of Exhibit A hereto.
(ef) Each Issuing Bank may assign to an Eligible Assignee all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that each such assignment shall be to an Eligible Assignee and the parties to each such assignment shall execute and deliver to the Paying Agent, for its acceptance and recording in the Register, an Assignment and Assumption.
(g) Each Lender Party may sell participations to one or more banks Persons (other than any Loan Party or other entities (each, a “Participant”any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes (if any) held by it); provided provided, however, that (i) such LenderLender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent Agents and the other Lenders Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such LenderLender Party’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this Agreementany Loan Document, other than or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate or fees payable with respect extent subject to any such Advance or Commitmentparticipation, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation, or Commitment, extends any Commitment, releases any guarantor release all or substantially all of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethe Collateral.
(fh) 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, participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided 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 relating to the Borrower Confidential Information received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Party.
(gi) If 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 (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation the Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment Regulation A of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance Board of Governors of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCFederal Reserve System.
Appears in 2 contracts
Sources: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (neither of which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gsubsection (g) hereof shall to the extent required by such Sectionsubsection (g), assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s 's rights and obligations under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s 's Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s 's entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative 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 processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))Borrower, and shall not be payable if the assignee is a Bank, any Affiliate of any Bank or the Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer Borrower or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement and its Notes to a Federal Reserve Bank, provided that no such assignment shall does not release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance and each Additional Lender Supplement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC 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 Administrative 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 pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder, a new Note 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 hereto.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “"Participant”") in or to all or a portion of its rights and/or obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) such Lender’s 's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (ivv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this AgreementAgreement or the Note or Notes held by such Lender, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) any Lender shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, or (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Rate Advances or (iii) does not shall fail to consent to, or shall revoke its consent to, the extension of any Termination Date pursuant to an amendment Section 2.16 or waiver that requires (iv) shall fail to consent to, or shall revoke its consent to, any extension of the consent of all Lenders and has been approved "Termination Date" (as defined in the Revolving Credit Agreement) requested by the Majority LendersBorrower pursuant to Section 2.16 of the Revolving Credit Agreement as originally constituted (or any successor provision of similar import), then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) ), or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) ), or (in the case of clause clauses (iii) and (iv)), within 60 ) no later than 10 days after prior to the date a draft of the applicable amendment or waiver was delivered to such Lenderthen effective Termination Date, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, 's Commitment and the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 daysdays (in the case of clause (i) or clause (ii)), or within the next succeeding 5 days (in the case of clauses (iii) and (iv)) . If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs's Commitment or Advances, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Bank”") may grant to a special purpose funding vehicle (an “"SPC”"), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.078.07(h), any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance Advances to the Granting Bank or to any financial institution institutions (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such the Granting Bank or SPCBank.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Peco Energy Co), 364 Day Credit Agreement (Peco Energy Co)
Assignments and Participations. (a) Each Lender Bank may, with upon obtaining the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents consent by any such party shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it Commitment and its participation in Facility LCsNote or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning LenderBank’s rights and obligations under this Agreementso assigned, (ii) the amount of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) may be in the amount of such Bank’s entire Commitment but otherwise shall in no event not be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentunless the Borrower and the Agent otherwise consent, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall (A) execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register, an Assignment and Acceptance, together with Acceptance and (B) deliver to the Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of 3,500; provided that the parties Agent may, in its sole discretion, elect to the Assignment waive such processing and Acceptancerecording fee, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) if no Event of Default has occurred and is continuing, the prior written consent of the Borrower (which consent shall not be unreasonably withheld or delayed) shall be required for an assignment by a Bank to an assignee which is not a Bank or an Affiliate or Approved Fund of a Bank, and (vi) consent of the Agent shall not be required after the occurrence and during the continuance for an assignment by a Bank to an assignee which is a Bank or an Affiliate or Approved Fund of any Event of Defaulta Bank. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder which effective date shall be a party hereto andat least two Business Days after the execution thereof, 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 (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning LenderBank’s rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, the Lender Bank 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 Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) or 5.01(b) 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 Administrative Agent, such assigning Lender Bank or any other Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank.
(c) The Administrative Agent (or a party designated by the Agent, which may include the Borrower) shall maintain at its address referred to in Section 8.02 9.02 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 Lenders Banks and the Commitment Amount of, and principal amount of the Advances owing to, each Lender Bank from time to time (the “Register”). The Agent (or its designee) shall also reflect in the Register the transfer of any portion of any Bank’s interest in the Notes, any Advances not evidenced by a Note or any other obligations hereunder (collectively, the “Obligations”), and the Agent (or its designee) shall retain a copy of the assignment transferring the Obligations for the registration or transfer of the Obligations, and shall enter the names and addresses of the transferees of the Obligations. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may Banks shall treat each Person whose name is recorded in the Register as a Lender Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Solely for purposes of this Section 9.08(c) and for tax purposes only, the Agent (or its designee) shall be the Borrower’s agent for purposes of maintaining the Register and notations of transfer in the Register. The Obligations are registered obligations and the right, title and interest of any Bank and/or its assignees in and to such Obligations shall be transferable only upon notation of such transfer in the Register (and each Note shall expressly so provide). This Section 9.08(c) shall be construed so that the Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related Treasury Regulations.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Bank and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC 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.
(e) Each Lender Bank may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it Commitment and its participation in Facility LCsNote or Notes held by it); provided provided, however, that (i) such LenderBank’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of any such Note and the maker of any Advance for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank’s rights and obligations under this Agreement Agreement, and (ivv) any agreement between such Lender Bank and any participant in connection with such participating interest shall retain the sole not restrict such Bank’s right to approve, without the consent of agree to any Participant, any amendment, modification amendment or waiver of any provision of this Agreement, other than or any such amendment, modification or waiver with respect consent to any Advance or Commitment in which departure by the Borrower therefrom, except (to the extent such Participant has an interest that forgives principal, interest or fees or reduces participant would be affected thereby) a reduction of the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor postponement of any such Advance or releases date fixed for payment thereof. Each Bank that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the obligations under this Agreement (the “Participant Register”); provided that no Bank shall have any substantial obligation to disclose any portion of collateralthe Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any commitments, if anyloans, securing letters of credit or its other obligations under this Agreement) 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 U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any such Advancenotice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose The Borrower agrees that each participant shall be entitled to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf benefits of the Borrower; provided 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 relating to the Borrower received by it from such Lender Sections 2.15 and 2.20 (subject to customary exceptions regarding regulatory requirementsthe requirements and limitations therein, compliance including the requirements under Section 2.20(f) (it being understood that the documentation required under Section 2.20(f) shall be delivered to the participating Bank)) to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that such participant (A) agrees to be subject to the provisions of Sections 2.20(i) and 2.21 as if it were an assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.15 or 2.20, with legal process and other requirements of law)respect to any participation, than its participating Bank would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation.
(g) If Notwithstanding any Lender other provisions set forth in this Agreement, any Bank at any time may assign, as collateral or otherwise, any of its rights (iincluding, without limitation, rights to payments of principal of and/or interest on the Advances) shall make demand for payment under Section 2.11(a), 2.11(b) this Agreement to any Federal Reserve Bank or 2.14, (ii) shall deliver any central bank having jurisdiction over such Bank without notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Ecolab Inc), 364 Day Credit Agreement (Ecolab Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded following a demand by the Borrower such Lender pursuant to Section 8.07(g2.10 or 2.12) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionPaying Agent, will assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of one or more Facilities, (ii) except in the assigning case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event be less than $10,000,000 or1,000,000 (or such lesser amount as shall be approved by the Paying Agent and, if lessso long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentBorrower), (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Paying Agent, for its acceptance (other than as to assignments to then existing Lenders and/or their Affiliates) and recording in the Register, an Assignment and AcceptanceAssumption, together with any Note or Notes subject to such assignment and together with a processing and recordation fee in the amount of $3,500 3,500; provided, however, that the processing and recordation fee set forth in sub-clause (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and iv) above shall not be payable if (A) with respect to an assignment by any Lender Party to an Affiliate or an Approved Fund of such Lender Party, or (B) with respect to an assignment (x) which is both by and to an existing Lender Party or (y) with a stated effective date occurring prior to the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required 90th day after the occurrence and during the continuance of any Event of Default. Closing Date hereof.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and AcceptanceAssumption, (xi) 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 AcceptanceAssumption, have the rights and obligations of a Lender or an Issuing Bank, as the case may be, hereunder and (yii) the Lender or an Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or of the remaining portion of an assigning Lender’s or an Issuing Bank’s rights and obligations under this Agreement, such Lender or such Issuing Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and AcceptanceAssumption, the each Lender Party assignor thereunder and the each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and AcceptanceAssumption, such assigning Lender Party 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 any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of this Agreement any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant heretothereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (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(e) 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 AcceptanceAssumption; (iv) such assignee will, independently and without reliance upon the Administrative any 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 Administrative each Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative such Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a LenderLender or an Issuing Bank, as the case may be.
(cd) The Administrative Paying Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders Lender Parties and the Commitment Amount under each Facility of, and principal amount of the Advances owing under each Facility to, each Lender Party from time to time (the “Register”). In addition, the Paying Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance Assumption executed by an assigning Lender Party and an assignee representing that it is an Eligible Assigneeassignee, together with any Note or Notes subject to such assignment, the Administrative Paying Agent shall, if such Assignment and Acceptance Assumption has been completed and is in substantially the form of Exhibit AC hereto, (i) accept such Assignment and AcceptanceAssumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Paying 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 each Facility pursuant to such Assignment and Assumption and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such 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 Assumption and shall otherwise be in substantially the form of Exhibit A hereto.
(ef) Each Issuing Bank may assign to an Eligible Assignee all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that each such assignment shall be to an Eligible Assignee and the parties to each such assignment shall execute and deliver to the Paying Agent, for its acceptance and recording in the Register, an Assignment and Assumption.
(g) Each Lender Party may sell participations to one or more banks or Persons (other entities (eachthan a natural person, a “Participant”Defaulting Lender or any Loan Party or any of Affiliates thereof) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes (if any) held by it); provided provided, however, that (i) such LenderLender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent Agents and the other Lenders Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such LenderLender Party’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this Agreementany Loan Document, other than or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate or fees payable with respect extent subject to any such Advance or Commitmentparticipation, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation, or Commitment, extends any Commitment, releases any guarantor release all or substantially all of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethe Collateral.
(fh) 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, participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided 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 relating to the Borrower Confidential Information received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Party.
(gi) If 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 (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Facility LCs and all Board of Governors of the Federal Reserve System.
(j) No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, or (B) to any Defaulting Lender or any of its other Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person.
(k) In connection with any assignment of rights and obligations hereunder within of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the next succeeding 30 days. If any other conditions thereto set forth herein, the parties to the assignment shall make such Eligible Assignee designated additional payments to the Paying Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the Borrower shall fail to consummate such assignment on terms acceptable to such Lenderassignee of participations or subparticipations, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitmentother compensating actions, Advances and participation in Facility LCsincluding funding, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance consent of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent Paying Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and without paying any processing fee thereforassignor hereby irrevocably consent), assign to (x) pay and satisfy in full all or a portion of its interests in any Advance payment liabilities then owed by such Defaulting Lender to the Granting Bank Paying Agent or to any financial institution Lender hereunder (consented to by and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Advances and purchases of Letters of Credit Advances and Swing Line Advances in accordance with its Pro Rata Share. Notwithstanding the Borrower foregoing, in the event that any assignment of rights and Administrative Agentobligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, which consents then the assignee of such interest shall be unreasonably withheld or delayed) providing liquidity and/or credit support deemed to or be a Defaulting Lender for the account all purposes of this Agreement until 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCcompliance occurs.
Appears in 2 contracts
Sources: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any from time to time, without the consent of Borrower or Guarantor, sell, transfer, pledge, assign, convey or syndicate the Note (or if there is more than one note, add some of the Notes), the Loan and the Loan Documents (or any interest therein), and any and all servicing rights with respect thereto, and may grant participations in the Loan, delegate its duties and obligations under the Loan and the Loan Documents, split the Loan into multiple parts, or the Note into multiple component notes or tranches or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in rated or unrated public offerings or private placement. In connection with any such sale, transfer, assignment, conveyance, participation, delegation, syndication, splitting or securitization, Lender may, acting for this purpose as an agent of Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 offices a register for the recordation of the names and addresses of the Lenders Lender’s participants or assignees, and the Commitment Amount ofamount and terms of Lender’s sales, transfers, assignments, conveyances and participations including specifying any such participant’s or assignee’s entitlement to payments of principal and interest, and any payments made, with respect to each such sale, transfer, assignment, conveyance or participation.
(b) Without limiting the generality of the foregoing or Lender’s other rights under this Agreement or other Loan Documents, Lender in its sole and absolute discretion, shall have the right at any time to require Borrower to execute and deliver “component” notes (including senior and junior notes), which notes may (i) require the holder of each or any of such notes (“Holder”) to make its pro rata or other share of disbursements of the Holdback pursuant to Section 2.2, (ii) be paid in such order of priority as may be designated by Lender, (iii) bear interest at rates different than the Interest Rate, provided that (A) the aggregate principal amount of such “component” notes shall equal the Advances owing tooutstanding principal balance of the Loan immediately prior to the creation of such “component” notes, (B) the weighted average interest rate of all such “component” notes shall on the date created equal the Interest Rate which was applicable to the Loan immediately prior to the creation of such “component” notes, (C) the debt service payments on all such “component” notes shall on the date created equal the debt service payments which were required under this Agreement immediately prior to the creation of such component notes and (D) the other terms and provisions of each Lender from time to time (of the “Register”). The entries in the Register component” notes shall be conclusive otherwise identical in substance and binding substantially similar in form to the Loan Documents. Borrower, at Lender’s expense shall cooperate with all reasonable requests of Lender in order to establish the “component” notes and shall execute and deliver such documents in addition to the component notes as shall reasonably be required by Lender, including amendments to the Security Instrument, any financing statements or other security documents necessary to evidence the component notes and the appointment of any agent for the Holders under the Co-Lender Agreement (defined below in subsection Section 9.1(b) in connection therewith, all purposesin form and substance reasonably satisfactory to Lender including, absent manifest errorwithout limitation, amendments to the Loan Documents and the severance of security documents if requested. In the event Borrower fails to execute and deliver such documents to Lender within five (5) Business Days following such request by Lender, Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, Borrower ratifying all that such attorney shall do by virtue thereof.
(c) If at any time the Loan is evidenced by more than one Note, Borrower acknowledges that the obligations of any Holder to make advances or disbursements under any Note or perform any other obligations under this Agreement or the other Loan Documents shall be several and not joint, and the Borrowerobligations of Borrower to any Holder shall not be reduced, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register discharged or released as a Lender result of the failure of any other Holder to perform its obligations under this Agreement or the other Loan Documents. Borrower hereby waives any existing or future right of offset, claim or defense against any Holder arising out of the failure of any other Holder to make any disbursements hereunder for all purposes or perform any other obligations of such Holder under this Agreement. The Register shall be available for inspection by Agreement or the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior noticeother Loan Documents.
(d) Upon its receipt At the option of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible AssigneeLender, the Administrative Agent shallLoan or any portion thereof may be serviced by Lender, if such Assignment its Affiliate or a servicer selected by Lender (“Servicer”) and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to delegate all or a any portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations administrative responsibilities under this Agreement and the other Loan Documents to the Servicer pursuant to a co-lender and servicing agreement (ivthe “Co-Lender Agreement”) such among the Holders and Servicer. Lender will notify Borrower of the appointment of a Servicer, unless the Servicer is Lender. Servicer shall retain be entitled to reimbursement of costs and expenses as and to the sole same extent (but without duplication) as Lender is entitled thereto under the applicable provisions of this Agreement and the other Loan Documents. To the extent provided in the Co-Lender Agreement, Servicer shall have the right to approve, without exercise all rights of Lender and enforce all obligations of Borrower pursuant to the consent of any Participant, any amendment, modification or waiver of any provision provisions of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent Note and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other Loan Documents. The rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated of Holders inter se shall be governed by the Borrower shall fail to consummate such assignment on terms acceptable to such Co-Lender Agreement, including the priority of payments. The Co-Lender Agreement may provide that Lender, Servicer or if any Holder or custodian appointed by the Holders shall be the agent of the Holders for purposes of holding the collateral for the Loan and enforcing the liens created by the Loan Documents, and Borrower shall fail will execute such amendments to designate any such Eligible Assignee for all the Loan Documents as may be necessary or desirable to effectuate and acknowledge the appointment of such Lender’s Commitmentagent. Neither Borrower, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained hereinGuarantors, any Lender (Environmental Indemnitor nor any Person claiming by or through any of the foregoing shall be a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part third party beneficiary of any Advance that such Granting Bank would otherwise be obligated agreement referred to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, 9.1(d) or have any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCrights thereof.
Appears in 1 contract
Assignments and Participations. (a) Each This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Senior Lender mayand their respective successors and assigns; provided, with however, that none of the Loan Parties may assign or transfer any of its rights hereunder without the prior written consent of each Senior Lender and any such assignment without the BorrowerSenior Lenders' prior written consent shall be null and void.
(b) Each Senior Lender may, each LC Issuer and (x) with the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by written consent of the Borrower pursuant to Section 8.07(g) shall to the extent required by such SectionCollateral Agent, assign to one or more banks other lenders or other entities all or a portion of its rights and obligations under this Agreement (including with respect to all or a portion of its Commitment, Senior Term Loan Commitments and the Advances owing to Senior Term Loans made by it and its participation in Facility LCs); provided that (iy) each such assignment shall be of a constant, and not a varying, percentage of all with the written consent of the assigning Lender’s Collateral Agent and the Administrative Agent, assign to one or more other lenders or other entities all or a portion of its rights and obligations under this AgreementAgreement with respect to all or a portion of its Revolving Credit Commitments, the Revolving Loans made by it and its Pro Rata Share of Letter of Credit Obligations); provided, however, that, in either case (i) such assignment is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Senior Lender's Commitment) (except such minimum amount shall not apply to any Affiliate of a Lender or a fund or account managed by a Lender), (ii) the Commitment Amount assignee agrees to be bound by the terms of the assigning Lender being assigned pursuant agreement among Lenders referred to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire CommitmentSection 11.02(b), (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Collateral Agent, for its acceptance and recording in the Registeracceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower 5,000 (except in the case payment of a demand under Section 8.07(g)), and such fee shall not be payable required if the assignee is an Affiliate of a Federal Reserve Bank), Lender or a fund or account managed by a Lender) and (viv) the no written consent of the Borrower Collateral Agent or the Administrative Agent shall not be required after the occurrence and during the continuance in connection with any assignment by a Lender to an Affiliate of any Event of Defaulta Lender or a fund or account managed by a Lender. Upon such execution, delivery, acceptance delivery and recordingacceptance, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least three Business Days after the delivery thereof to the Collateral Agent (xor such shorter period as shall be agreed to by the Collateral Agent and the parties to such assignment), (A) the assignee thereunder shall be become a party hereto "Lender" hereunder and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder Acceptance and (yB) the assigning Senior 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 Senior Lender’s 's rights and obligations under this Agreement, such Senior Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bi) By executing and delivering an Assignment and Acceptance, the assigning Senior Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (iA) other than as provided in such Assignment and Acceptance, such the assigning Senior 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 Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (iiB) such the assigning Senior Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or any of its Subsidiaries or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (iiiC) such assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with copies of the financial statements referred to in Section 4.01(e) 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; (ivD) such assignee will, independently and without reliance upon the Administrative Agentassigning Senior Lender, such assigning Lender any Agent or any other Senior 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 AgreementAgreement and the other Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (viE) such assignee appoints and authorizes the Administrative Agent Agents to take such action as agent agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agents by the terms hereofhereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (viiF) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(cii) The Borrowers authorize the Administrative Agent, and the Administrative Agent shall maintain agrees, to maintain, or cause to be maintained at its address referred to in Section 8.02 the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the "Register") for the recordation of the names and addresses of the Senior Lenders and the Commitment Amount Commitments of, and principal amount of the Advances Senior Loans (the "Registered Loans") and Letter of Credit Obligations owing to, to each Senior Lender from time to time (the “Register”)time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent Agents and the Senior Lenders may shall treat each Person whose name is recorded in the Register as a Senior Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or Administrative Borrower, any Senior Lender and the Collateral Agent at any reasonable time and from time to time upon reasonable prior notice.
(diii) Upon its receipt by the Administrative Agent of an Assignment and Acceptance executed by an assigning Senior Lender and an assignee representing that it is an Eligible Assigneeassignee, together with any promissory notes subject to such assignment, the Administrative Collateral Agent shall, if the Collateral Agent consents to such assignment and if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit Acompleted, (i) accept such Assignment and Acceptance, (ii) Acceptance and the Administrative Agent shall record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerRegister.
(eiv) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary.
(v) In the event that any Senior Lender sells participations in a Registered Loan, such Senior Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(vi) Any foreign Person who purchases or is assigned or participates in any portion of such Registered Loan shall provide the Agents and the Senior Lender with a completed Internal Revenue Service Form W-8BEN (Certificate of Foreign Status) or a substantially similar form for such purchaser, participant or any other affiliate who is a holder of beneficial interests in the Registered Loan.
(c) Each Senior Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments, the Senior Loans made by it and its Pro Rata Share of the Letter of Credit Obligations); provided, that (i) such Senior Lender's obligations under this Agreement (including all or a portion of without limitation, its Commitment, Commitments hereunder) and the Advances owing to it and its participation in Facility LCs); provided that (i) such Lender’s obligations under this Agreement other Loan Documents shall remain unchanged, ; (ii) such Senior Lender shall remain solely responsible to the other parties hereto for the performance of -129- such obligations, (iii) and the BorrowerBorrowers, the Administrative Agent Agents and the other Senior Lenders shall continue to deal solely and directly with such Senior Lender in connection with such Senior Lender’s 's rights and obligations under this Agreement and the other Loan Documents; and (iviii) a participant shall not be entitled to require such Senior Lender shall retain to take or omit to take any action hereunder except (A) action directly effecting an extension of the sole right to approvematurity dates or decrease in the principal amount of the Senior Loans or Letter of Credit Obligations, without (B) action directly effecting an extension of the consent due dates or a decrease in the rate of any Participant, any amendment, modification interest payable on the Senior Loans or waiver of any provision of the fees payable under this Agreement, other than any such amendment, modification or waiver with respect to any Advance (C) actions directly effecting a release of all or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any a substantial portion of collateral, if any, securing the Collateral or any such Advance.
Borrower or any Guarantor (f) Any Lender may, except as set forth in connection with Section 10.08 of this Agreement or 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of lawLoan Document).
(gd) If any Lender (i) This Agreement and the other Loan Documents shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice be binding upon and inure to the Administrative Agent pursuant to Section 2.12 resulting in the suspension benefit of certain obligations each Subordinated Term Loan D and each of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders its successors and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case assigns. Each Subordinated Term Loan D Lender may be, the Borrower may demand that such Lender transfer and assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by other Persons the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance Subordinated Term Loan D Notes pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment provisions set forth in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCAnnex 5.
Appears in 1 contract
Assignments and Participations. (a) Each Lender maymay at any time, with notice to the Company prior written to making any proposal to any potential assignee and with the consent of the BorrowerCompany, each LC Issuer and the Administrative Agent (which consents consent shall not be unreasonably withheld or delayed)(and shall at any time, and if demanded requested to do so by the Borrower Company pursuant to Section 8.07(g2.05(b), 2.10 or 2.13) shall to the extent required by such Section, assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Revolving Credit Advances owing to it and its participation in Facility LCsthe Revolving Credit Note or Notes held by it); provided provided, however, that (i) the Company's consent shall not be required (A) in the case of an assignment to an Affiliate of such Lender, provided that notice thereof shall have been given to the Company and the Agent, or (B) in the case of an assignment of the type described in subsection (g) below; (ii) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement (other than any right to make Competitive Bid Advances, Competitive Bid Advances owing to it and Competitive Bid Notes); (iii) except in the case of the assigning an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 or such Lender’s entire Commitment, in excess thereof; (iiiiv) each such assignment shall be to an Eligible Assignee, (ivv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with made as a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case result of a demand under by the Company pursuant to this Section 8.07(g))9.07(a) shall be arranged by the Company after consultation with, and subject to the approval of, the Agent, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent either an assignment of the Borrower shall not be required after the occurrence and during the continuance all of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of the assigning Lender under this Agreement or an assignment of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that portion of such rights and obligations hereunder have been assigned by it pursuant to made concurrently with another such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement and, in assignment or other such assignments that together cover all of the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations of the assigning Lender under this Agreement, (vi) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 9.07(a) unless and until such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender have received one or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender more payments from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 either the Borrower or the performance one or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to more Eligible Assignees in Section 4.01(e) 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 Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate an aggregate amount 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated least equal to the 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and aggregate outstanding principal amount of the Advances owing toto such Lender, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof together with accrued interest thereon to the Borrower.
(e) Each Lender may sell participations date of payment of such principal amount and all other amounts payable to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) all of the obligations of the Borrower to such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrowerhave been satisfied; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.and
Appears in 1 contract
Sources: 364 Day Credit Agreement (Honeywell International Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) without the prior written consent of the Administrative Agent (which may be withheld for any reason) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of each of the assigning Facilities on a pro rata basis with respect to each Facility, and no Facility may be assigned in full or in part without a contemporaneous assignment to the same assignee of each of the other Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment5,000,000, (iii) each no such assignments shall be permitted without the prior consent of the Administrative Agent (which may be withheld for any reason) until the Administrative Agent shall have notified the Lender Parties that syndication of the Commitments hereunder has been completed, but in any event not later than 90 days following the Effective Date, (iv) no such assignment shall be permitted if, immediately after giving effect thereto, any Borrower would be required to an Eligible Assigneemake payments to or on behalf of the assignee Lender Party pursuant to Section 2.9(a) or (b) and the assignor Lender Party was not, at the time of such assignment, entitled to receive any payment pursuant to Section 2.9(a) or (ivb), and (v) the parties to each such assignment shall execute and deliver to the Administrative 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 processing and recordation fee of $3,500 3,500.
(which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (vb) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (y) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) 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 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 heretohereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the any Borrower or any other Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (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(e) 4.6 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 Administrative 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 Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (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 LenderLender or Issuing Bank, as the case may be.
(cd) The Administrative Agent shall maintain at its address referred to in Section 8.02 11.2 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 Lenders Lender Parties and the Commitment Amount 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 conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent and the Lenders Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Borrowers or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee representing that it is an Eligible Assigneeassignee, together with any Note or Notes subject to such assignment and the appropriate processing and reconciliation fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AA hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerBorrowers. In the case of any assignment by a Lender, within five (5) Business Days after its receipt of such notice, the Borrowers, at their own expense, shall execute and deliver to the Administrative 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 a Facility pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder under such Facility, a new Note 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 B hereto.
(ef) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more banks Persons (other than any Loan Party or other entities (each, a “Participant”any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances owing to it and its participation in Facility LCs)the Note or Notes, if any, held by it) at any time and from time to time and without the consent of or notice to any Borrower or any Guarantor; provided provided, however, that (i) such Lender’s Lender Party's obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the Borrowerholder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent and the other Lenders Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such Lender’s Lender Party's rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of any Participant, approve any amendment, waiver or other modification or waiver of any provision of this AgreementAgreement or any other Loan Document, other than or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver, modification or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate or fees payable with respect extent subject to any such Advance or Commitmentparticipation, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation, or Commitment, extends any Commitment, releases any guarantor release all or substantially all of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethe Collateral.
(fh) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.0711.7, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower Borrowers furnished to such Lender Party by or on behalf of the BorrowerBorrowers; provided 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 relating to the Borrower Confidential Information received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Party.
(gi) If 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 (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation the Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment Regulation A of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance Board of Governors of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCFederal Reserve System.
Appears in 1 contract
Sources: Credit Agreement (Mediabay Inc)
Assignments and Participations. (a) Each Lender of the ------------------------------ Lenders may, with and, if demand is made by Fox Kids (following (i) a demand by such Lender for the prior written payment of additional 151 compensation pursuant to Section 2.09(a), 2.09(b) or 2.11, (ii) an assertion by such Lender pursuant to Section 2.09(c) or 2.09(d) that it is impractical or unlawful for such Lender to make Eurodollar Rate Advances or (iii) a refusal by such Lender to approve any amendment or waiver of, or consent to departure from, any of the Borrowerterms or conditions of this Agreement or any of the other Loan Documents; provided that Fox Kids may not demand the replacement of one or more Lenders pursuant to this subclause (iii) holding, each LC Issuer in the aggregate, more than 5% of the aggregate Commitments under all of the Facilities as of the date of any such proposed amendment, waiver or consent or the date of any such proposed demand), upon at least 30 days' notice (or, solely in the case of clause (iii) of this Section 9.08(a), upon at least five Business Days' prior notice) to such Lender and the Administrative Agent (which consents shall not be unreasonably withheld or delayed)Agent, and if demanded by each of the Borrower pursuant to Section 8.07(g) shall to the extent required by such SectionLenders will, assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided that provided, however, that:
(iA) each such assignment with respect to any of the Facilities shall be of a constantuniform, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreementand in respect of such Facility;
(B) except in the case of an assignment to a Person that immediately prior to such assignment was a Lender or an assignment of all of a Lender's rights and obligations under one or more of the Facilities, (ii) the Commitment Amount aggregate amount of the Commitments of the assigning Lender under all of the Facilities being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, 10,000,000;
(iiiC) each such assignment shall be to an Eligible Assignee;
(D) until such time as the Arranger shall have notified the Lenders that syndication of the Commitments has been completed, no such assignment shall be permitted, and no Lender shall engage in any discussions with any Person relating to any such assignment or potential assignment, without the prior written consent of the Administrative Agent;
(ivE) each such assignment made as a result of a demand by Fox Kids pursuant to this Section 9.08(a) shall be arranged by Fox Kids with the approval of the Administrative Agent, which approval shall not be unreasonably withheld or delayed, and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement;
(F) no Lender shall be obligated to make any such assignment as a result of a demand by Fox Kids pursuant to this Section 9.08(a) unless and until such Lender shall have received one or more payments from one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of all Advances owing to such Lender, together with accrued and unpaid interest thereon to the date of payment of such principal amount, and from the Borrowers and/or one or more Eligible Assignees in an aggregate amount equal to all other amounts payable to such Lender under this Agreement and the Notes (including, without limitation, any amounts owing under Sections 2.09, 2.11, 9.04 and 9.05); 152
(G) except in the case of any assignment made as a result of a demand by Fox Kids pursuant to Section 9.08(a), the Lender assignor or the Administrative Agent shall have given Fox Kids at least two Business Days' prior notice of the intended assignment and the Person to which such assignment is proposed to be made;
(H) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment; and
(I) the Lender assignor (or, if such assignment is being made pursuant to a demand by Fox Kids therefor under this Section 9.08(a), the Borrowers or the Lender assignee) shall pay to the Administrative Agent a processing and recordation fee of $3,500 3,500.
(which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (vb) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, (xi) 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 (yii) 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 (other than its rights under Sections 2.09, 2.11, 9.04 and 9.05 (and other similar provisions of the other Loan Documents that are specified under the terms of such other Loan Documents to survive the payment in full of the Obligations of the Loan Parties under or in respect of the Loan Documents) to the extent any claim thereunder relates to an event arising prior to such assignment) 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 of the other Loan Documents, 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 of the other Loan Documents, or any other instrument or document furnished pursuant hereto; hereto or thereto;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any of the Borrower Borrowers or any of the other Loan Parties or the performance or observance by any of the Borrower Borrowers or any of the other Loan Parties of any of its obligations Obligations under this Agreement or in respect of any of the Loan Documents, or any other instrument or document furnished pursuant hereto; 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(e) 4.01 and such other documents and 153 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 any of the Administrative AgentAgents, such assigning Lender or any of the other Lender Lenders 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 Administrative Agent to take such action as an agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and and
(vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(cd) The Administrative Agent Agent, acting for this purpose (but only for this purpose) as the agent of each of the Borrowers, shall maintain at its address referred to set forth in Section 8.02 9.02 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 Lenders and the Commitment Amount under each of the Facilities of, and principal amount of the Advances owing under each of the Facilities to, each Lender of the Lenders from time to time (the “Register”"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent and the Lenders may shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by any of the Borrower Borrowers, any of the Agents or any Lender of the Lenders at any reasonable time and from time to time during normal business hours upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneeassignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerAppropriate Borrowers. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, each of the Appropriate Borrowers, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note or Notes from such Borrower payable to or to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment under such Facility, a new Note or Notes from each such Appropriate Borrower payable to or to the order of the assigning Lender in an amount equal to the Commitment retained by it under such Facility. Each of the 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 ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ or Exhibit A-3 hereto, as appropriate.
(ef) Each Lender of the Lenders may sell participations to one or more banks Persons (other than any of the Loan Parties or other entities (each, a “Participant”any of their respective Affiliates) in or to all or a portion of its rights and/or and obligations 154 under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitment or Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes, if any, held by it); provided that provided, however, that:
(i) such Lender’s 's obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, ;
(ii) the aggregate amount of the Commitments of the participating Lender under all of the Facilities being sold in each such participation (determined as of the date such participation is effected) shall in no event be less than $5,000,000;
(iii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iiiiv) such Lender shall remain the holder of any such Note for all purposes of this Agreement;
(v) the BorrowerBorrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents; and
(ivvi) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this Agreementany of the Loan Documents, other than or any consent to any departure by any of the Loan Parties therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate or fees payable with respect extent subject to any such Advance or Commitmentparticipation, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation, or Commitment, extends any Commitment, releases any guarantor release all or substantially all of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethe Collateral.
(fg) Any Lender of the Lenders may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.08, disclose to the assignee or participant or proposed assignee or participant, any information relating to Fox Kids or any of its Subsidiaries or IFE or any of its Subsidiaries, or to any aspect of the Borrower Transaction, furnished to such Lender by or on behalf of any of the BorrowerBorrowers; provided 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 relating to the Borrower Confidential Information received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)on substantially the same terms as those set forth in Section 9.09.
(gh) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations Any of the Lenders with respect to Eurodollar Advances may at any time create a security interest in all or any portion of its rights under this Agreement (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lendersincluding, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation the Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment Regulation A of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance Board of Governors of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCFederal Reserve System.
Appears in 1 contract
Sources: Credit Agreement (Fox Television Stations Inc /De/)
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender maymay assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not be unreasonably withheld or delayed)) of:
(A) Borrowers; provided, that no consent of Borrowers shall be required (1) if a Default or Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Borrowers shall be deemed to have consented to a proposed assignment unless they object thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) Agent, Swing Lender, and if demanded by the Borrower pursuant to Section 8.07(gIssuing Bank.
(ii) Assignments shall be subject to the extent required by such Sectionfollowing additional conditions:
(A) no assignment may be made (i) long as no Specified Event of Default has occurred and is continuing, assign to one a Competitor, or more banks or (ii) to a natural person,
(B) no assignment may be made to a Loan Party, an Affiliate of a Loan Party,
(C) the amount of the Commitments and the other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignmentassignment is delivered to Agent) shall be in no event be less than a minimum amount (unless waived by Agent) of $10,000,000 or5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, if lessan Affiliate of any Lender, the entire amount or a Related Fund of such Lender’s CommitmentLender or (II) a group of new Lenders, and shall each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be an integral multiple of assigned to all such new Lenders is at least $1,000,000 or such Lender’s entire Commitment, 5,000,000),
(iiiD) each such partial assignment shall be to made as an Eligible Assignee, assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(ivE) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, Agent an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent by such Lender and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing and recordation fee in the amount of $3,500 3,500, and
(which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (vG) the consent of assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from "Administrative Questionnaire").
(b) From and after the effective date specified in each that Agent receives the executed Assignment and AcceptanceAcceptance and, if applicable, payment of the required processing fee, (xi) the assignee 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, shall be a "Lender" and shall have the rights and obligations of a Lender hereunder under the Loan Documents, and (yii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from its any future obligations under this Agreement and, (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this AgreementAgreement and the other Loan Documents, such Lender shall cease to be a party hereto (although an and thereto); provided, that nothing contained herein shall release any assigning Lender shall continue to be entitled to indemnification pursuant to from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 8.04(c15 and Section 17.9(a)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the assignee 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 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 or any other instrument or document Loan 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 any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; , (iii) such assignee Assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender 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 confirms that it is an Eligible Assignee; (vi) such assignee Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agent, by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; , and (viivi) such assignee 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.
(cd) The Administrative 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 Immediately upon Agent's receipt of the names required processing fee, if applicable, and addresses delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Lenders Assignee and the Commitment Amount of, and principal amount resulting adjustment of the Advances owing to, each Lender from time to time (the “Register”)Commitments arising therefrom. The entries Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Register shall be conclusive and binding for all purposesor any portion of its Obligations, absent manifest errorits Commitment, and the Borrowerother rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as Originating Lender shall remain a Lender hereunder "Lender" for all purposes of this Agreement. The Register shall be available for inspection by Agreement and the Borrower or any Lender at any reasonable time other Loan Documents and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneethe Participant receiving the participating interest in the Obligations, the Administrative Agent shallCommitments, if such Assignment and Acceptance has been completed the other rights and is in substantially interests of the form of Exhibit A, (i) accept such Assignment Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) such Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such the Originating Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the BorrowerBorrowers, the Administrative Agent Agent, and the other Lenders shall continue to deal solely and directly with such the Originating Lender in connection with such the Originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, (iv) such no Lender shall retain transfer or grant any participating interest under which the sole Participant has the right to approveapprove any amendment to, without the or any consent of any Participant, any amendment, modification or waiver of with respect to, this Agreement or any provision of this Agreementother Loan Document, other than any except to the extent such amendmentamendment to, modification or consent or waiver with respect to this Agreement or of any Advance or Commitment other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant has an is participating, (B) reduce the interest that forgives principalrate applicable to the Obligations hereunder 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 Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment Participant through such Lender (other than a waiver of principal ofdefault interest), or (E) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) all amounts payable by Borrowers 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 or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor 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 Advance Participant participates and no Participant shall have any rights under this Agreement or releases the other Loan Documents or any substantial portion direct rights as to the other Lenders, Agent, Borrowers, the Collateral, or otherwise in respect of collateral, if any, securing any such Advancethe Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) Any Lender may, in In connection with any such assignment or participation or proposed assignment or participation pursuant or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to this the provisions of Section 8.0717.9, disclose to the assignee all documents and information which it now or participant or proposed assignee or participant, any information hereafter may have relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process Loan Party and other requirements of law)its Subsidiaries and their respective businesses.
(g) If Any other provision in this Agreement notwithstanding, any Lender (i) shall make demand for payment may at any time create a security interest in, or pledge, all or any portion of its rights under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice and interest in this Agreement to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain secure obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign including any pledge in favor of any Federal Reserve Bank in accordance with this Section 8.07 to one Regulation A of the Federal Reserve Bank or more Eligible Assignees designated by the Borrower U.S. Treasury Regulation 31 CFR §203.24, and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s CommitmentFederal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, the Advances owing to it and its participation in the Facility LCs and all that no such pledge shall release such Lender from any of its other rights and obligations hereunder within the next succeeding 30 days. If or substitute any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, pledgee or if the Borrower shall fail to designate any such Eligible Assignee assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodas a party hereto.
(h) Notwithstanding anything Agent (as a non-fiduciary agent on behalf of Borrowers) shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name and address of each Lender as the registered owner of the Term Loan (and the principal amount thereof and stated interest thereon) held by such Lender (each, a "Registered Loan"). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the contrary contained hereindesignated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Term Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register. The parties hereto intend that the Register and any other register set forth in this Section 13.1 are maintained such that the Loans are in "registered form" for the purposes of the IRC.
(i) In the event that a “Granting Bank”Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the "Participant Register"). A Registered Loan (and the Registered Note, if any, evidencing the same) may grant be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a special Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in "registered form" for the purpose funding vehicle of the IRC, including under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (an “SPC”), identified in its capacity as such in writing Agent) shall have no responsibility for maintaining a Participant Register.
(j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register to the extent it has one) available for review by Borrowers from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC Borrowers may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCreasonably request.
Appears in 1 contract
Sources: Credit Agreement (Model N, Inc.)
Assignments and Participations. (a) Each This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender mayand their respective successors and assigns; provided, with however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of the Borrower, each LC Issuer Lender and the Administrative Agent and any such assignment without the Lenders’ and the Administrative Agent’s prior written consent shall be null and void and no Lender may assign or transfer any of its rights hereunder or under the other Loan Documents except (which consents shall not be unreasonably withheld or delayedi) to an assignee in accordance with the provisions of Section 12.07(b) and (ii) by way of participation in accordance with the provisions of Section 12.07(i), and if demanded by . Each Lender may with the Borrower pursuant to Section 8.07(g) shall to written consent of the extent required by such SectionAdministrative Agent, assign to (i) one or more banks Eligible Transferees and (ii) if an Event of Default has occurred and is continuing, one or other entities more Ineligible Institutions, in each case, all or a portion of its rights and obligations under this Agreement (including with respect to all or a portion of its CommitmentTerm Loan Commitment and any portion of the Term Loans made by it; provided, the Advances owing to it and its participation in Facility LCs); provided however, that (i) each any such assignment under clause (i) above shall require the prior consent of the Borrower (which consent shall not be unreasonably withheld, conditioned or delayed (and shall be deemed to have been given in the event Borrower has not responded within five (5) Business Days of a constant, and not a varying, percentage request for such consent) nor shall it be required during the existence of all an Event of the assigning Lender’s rights and obligations under this AgreementDefault), (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment is in an amount which is at least $500,000 or a multiple of $250,000 in excess thereof (determined as of or the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (x) a Lender, and shall an Affiliate of such Lender or a Related Fund of such Lender or (y) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be an integral assigned to all such new Lenders is at least $500,000 or a multiple of $1,000,000 or such Lender’s entire Commitment250,000 in excess thereof), (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative each Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with and such parties shall deliver to the Administrative Agent, for the benefit of the Administrative Agent, a processing and recordation fee of $3,500 (which provided that the Administrative Agent, in its sole discretion, may elect to waive or reduce such processing and recordation fee), (iv) any such assignment shall be payable by one or more require the consent of the parties to the Assignment and Acceptance, and not by the Borrower Administrative Agent (except in the case of a demand under Section 8.07(g)), and which consent shall not be payable unreasonably withheld or delayed); provided, that no written consent of the Collateral Agent, the Administrative Agent or the Borrower shall be required (1) in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (2) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the assignee is a Federal Reserve Bank), business or loan portfolio of such Lender and (v) the consent of the Borrower assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax forms required after the occurrence by Section 2.08 and during the continuance of any Event of Defaultan Administrative Questionnaire. Upon such execution, delivery, acceptance delivery and recordingacceptance, from and after the effective date specified in each Assignment and AcceptanceAcceptance and recordation in the Register, (xA) the assignee thereunder shall be become a party hereto “Lender” hereunder and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder Acceptance and (yB) the assigning 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 KL2 3287103.6 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). hereto) Notwithstanding the foregoing or anything contained in this Section 8.07(a) to the contrarycontrary set forth herein, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent no assignment shall not be required with respect made at any time to any assignment by any Lender to an Affiliate of such Defaulting Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) Subsidiaries or Affiliates, or any Person who, upon becoming a Lender would constitute a Defaulting Lender. By executing and delivering an Assignment and Acceptance, the assigning 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 Acceptance, such the 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 Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agentassigning Lender, such assigning Lender any Agent 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 AgreementAgreement and the other Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent Agents to take such action as agent agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agents by the terms hereofhereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (viivi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(c) . The Administrative Agent shall maintain shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain, or cause to be maintained at one of its address referred to offices in Section 8.02 the United States, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment Amount Commitments of, and the principal amount of the Advances Term Loans (and stated interest thereon) (the “Registered Loans”) owing to, to each Lender from time to time (the “Register”)time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders may shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d. The Register is intended to cause the Registered Loans to be in registered form within the meaning of Treasury Regulations Section 5f.103-1(c) and within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code. Upon its receipt by the Administrative Agent of an a completed Assignment and Acceptance executed and the processing and recordation fee (if applicable) and other items required to be delivered to the Administrative Agent pursuant to Section 12.07(b), and subject to any KL2 3287103.6 consent required from the Administrative Agent pursuant to Section 12.07(b) (which consent of the Administrative Agent must be evidenced by the Administrative Agent’s execution of an assigning Lender acceptance to such Assignment and an assignee representing that it is an Eligible AssigneeAcceptance), the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) shall accept such Assignment and Acceptanceassignment, (ii) record the information contained therein in the Register. A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (iiiand the registered note, if any, evidencing the same) give prompt notice thereof may be effected only by registration of such assignment or sale on the Register. Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary. In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrower.
, maintain, or cause to be maintained, a register, on which it enters the name of all participants in the Registered Loans held by it and the principal amount (eand stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Treasury Regulations Section 5f.103-1(c) or proposed Section 1.163-5(b) of the United States Treasury Regulations (or, in each case, any amended or successor version). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant 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. Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.08(d). Each Lender may sell participations to (x) one or more banks Eligible Transferees and (y) if an Event of Default under Sections 9.01(a), (f) or other entities (eachg) has occurred and is continuing, a “Participant”) one or more Ineligible Institutions, in each case, in or to all or a portion of its rights and/or and obligations under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its Commitment, Commitments and the Advances owing to it and its participation in Facility LCsTerm Loans made by it); provided provided, that (i) such Lender’s KL2 3287103.6 obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged, unchanged and that any such participant shall not be entitled to receive any greater payment or benefit hereunder than such Lender would have been entitled to receive with respect to the participation sold to such participant unless the sale of such participation is made with the Borrower’s prior written consent; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) and the Borrower, the Administrative Agent Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iviii) a participant shall not be entitled to require such Lender shall retain to take or omit to take any action hereunder except (A) action directly effecting an extension of the sole right to approvematurity dates or decrease in the principal amount of the Term Loans, without (B) action directly effecting an extension of the consent due dates or a decrease in the rate of any Participant, any amendment, modification interest payable on the Term Loans or waiver of any provision of the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other than any such amendmentLoan Document). The Loan Parties agree that each participant shall be entitled to the benefits of Sections 2.08, modification or waiver 2.09, 2.10, 2.11 and 2.12 subject to the obligations and limitations set forth thereunder with respect to its participation in any Advance portion of the Commitments and the Term Loans as if it was a Lender. Any Lender may at any time pledge or Commitment assign a security interest in which all or any portion of its rights under this Agreement to secure obligations of such Participant has an interest Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to, or other indebtedness issued by, such Lender pursuant to a securitization transaction (including any structured warehouse credit facility, collateralized loan obligation transaction or similar facility or transaction, and including any further securitization of the indebtedness or equity issued under such a transaction) (a “Securitization”); provided that forgives principal, interest no such pledge or fees assignment shall release such Lender from any of its obligations hereunder or reduces the interest rate or fees payable with respect to substitute any such Advance pledgee or Commitmentassignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect a Securitization, postpones any date fixed for any regularly scheduled payment of principal ofincluding, or interest or fees onwithout limitation, any by providing such Advance or Commitment, extends any Commitment, releases any guarantor of any information as may be reasonably requested by such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all rating of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all Loans or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCSecuritization.
Appears in 1 contract
Sources: Credit Agreement (Boxlight Corp)
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender maymay assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not be unreasonably withheld or delayed)) of:
(A) Borrowers; provided, that no consent of Borrowers shall be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Borrowers shall be deemed to have consented to a proposed assignment unless they object thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) Agent, Swing Lender, and if demanded by the Borrower pursuant to Section 8.07(gIssuing Bank.
(ii) Assignments shall be subject to the extent required by such Section, assign following additional conditions:
(A) no assignment may be made to one a natural person,
(B) no assignment may be made to a Loan Party or more banks or any Affiliate of a Loan Party,
(C) the amount of the Commitments and the other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignmentassignment is delivered to Agent) shall be in no event be less than a minimum amount (unless waived by Agent) of $10,000,000 or5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, if lessan Affiliate of any Lender, the entire amount or a Related Fund of such Lender’s CommitmentLender or (II) a group of new Lenders, and shall each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be an integral multiple of assigned to all such new Lenders is at least $1,000,000 or such Lender’s entire Commitment, 5,000,000),
(iiiD) each such partial assignment shall be to made as an Eligible Assignee, assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(ivE) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, Agent an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent by such Lender and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing and recordation fee in the amount of $3,500 3,500, and
(which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (vG) the consent of assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from "Administrative Questionnaire").
(b) From and after the effective date specified in each that Agent receives the executed Assignment and AcceptanceAcceptance and, if applicable, payment of the required processing fee, (xi) the assignee 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, shall be a "Lender" and shall have the rights and obligations of a Lender hereunder under the Loan Documents, and (yii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from its any future obligations under this Agreement and, (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this AgreementAgreement and the other Loan Documents, such Lender shall cease to be a party hereto (although an and thereto); provided, that nothing contained herein shall release any assigning Lender shall continue to be entitled to indemnification pursuant to from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 8.04(c15 and Section 17.9(a)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the assignee 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 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 or any other instrument or document Loan 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 any Borrower or the performance or observance by the any Borrower of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; , (iii) such assignee Assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender 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 confirms that it is an Eligible Assignee; (vi) such assignee Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agent, by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; , and (viivi) such assignee 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.
(cd) The Administrative 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 Immediately upon Agent's receipt of the names required processing fee, if applicable, and addresses delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Lenders Assignee and the Commitment Amount of, and principal amount resulting adjustment of the Advances owing to, each Lender from time to time (the “Register”)Commitments arising therefrom. The entries Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Register shall be conclusive and binding for all purposesor any portion of its Obligations, absent manifest errorits Commitment, and the Borrowerother rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as Originating Lender shall remain a Lender hereunder "Lender" for all purposes of this Agreement. The Register shall be available for inspection by Agreement and the Borrower or any Lender at any reasonable time other Loan Documents and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneethe Participant receiving the participating interest in the Obligations, the Administrative Agent shallCommitments, if such Assignment and Acceptance has been completed the other rights and is in substantially interests of the form of Exhibit A, (i) accept such Assignment Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) such Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such the Originating Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the BorrowerBorrowers, the Administrative Agent Agent, and the other Lenders shall continue to deal solely and directly with such the Originating Lender in connection with such the Originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, (iv) such no Lender shall retain transfer or grant any participating interest under which the sole Participant has the right to approveapprove any amendment to, without the or any consent of any Participant, any amendment, modification or waiver of with respect to, this Agreement or any provision of this Agreementother Loan Document, other than any except to the extent such amendmentamendment to, modification or consent or waiver with respect to this Agreement or of any Advance or Commitment other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant has an is participating, (B) reduce the interest that forgives principalrate applicable to the Obligations hereunder 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 Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment Participant through such Lender (other than a waiver of principal ofdefault interest), or (E) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) all amounts payable by Borrowers 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 or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor 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 Advance Participant participates and no Participant shall have any rights under this Agreement or releases the other Loan Documents or any substantial portion direct rights as to the other Lenders, Agent, Borrowers, the Collateral, or otherwise in respect of collateral, if any, securing any such Advancethe Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) Any Lender may, in In connection with any such assignment or participation or proposed assignment or participation pursuant or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to this the provisions of Section 8.0717.9, disclose to the assignee all documents and information which it now or participant or proposed assignee or participant, any information hereafter may have relating to the any Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)its Subsidiaries and their respective businesses.
(g) If Any other provision in this Agreement notwithstanding, any Lender (i) shall make demand for payment may at any time create a security interest in, or pledge, all or any portion of its rights under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver and interest in this Agreement in favor of any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign Federal Reserve Bank in accordance with this Section 8.07 to one Regulation A of the Federal Reserve Bank or more Eligible Assignees designated by the Borrower U.S. Treasury Regulation 31 CFR §203.24, and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation Federal Reserve Bank may enforce such pledge or security interest in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodmanner permitted under applicable law.
(h) Notwithstanding anything In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the contrary contained hereinname of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the "Participant Register"). A Registered Loan (and the Registered Note, any Lender (a “Granting Bank”if any, evidencing the same) may grant to be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(i) Agent shall make a special purpose funding vehicle copy of the Register (an “SPC”), identified as such and each Lender shall make a copy of its Participant Register in writing the extent it has one) available for review by Borrowers from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC Borrowers may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCreasonably request.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Administrative Agent, the Issuing Bank and the Borrower (such consent not to be unreasonably withheld and, in the case of the Borrower, each LC Issuer and the Administrative Agent (which consents such consent shall not be unreasonably withheld or delayedrequired if an Event of Default has occurred and is continuing), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the lesser of (A) $10,000,000 or, if less, the entire amount and (B) all of such Lender’s Commitment's rights and obligations and, and if the preceding clause (A) is applicable, shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment1,000,000, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with Acceptance and such parties (other than when Citibank is an assigning party) shall also deliver to the Administrative Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance (and copies of the related consents of the Borrower and the Administrative Agent to such assignment) delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AB 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.
(e) Each Lender may assign to one or more banks or other entities any Advance made by it.
(f) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) such Lender’s 's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any promissory note held pursuant to Section 2.02(b) for all purposes of this Agreement, (iv) the Borrower, the Issuing Bank, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (ivv) the holder of any such participation, other than an Affiliate of such Lender, shall not be entitled to require such Lender to take or omit to take any action hereunder, except action (A) extending the time for payment of interest on, or the final maturity of any portion of the principal amount of, the Advances or (B) reducing the principal amount of or the rate of interest payable on the Advances. Without limiting the generality of the foregoing: (i) such participating banks or other entities shall be entitled to the cost protection provisions contained in Sections 2.09, 2.13 and 8.04(b) only if, and to the same extent, the Lender from which such participating banks or other entities acquired its participation would, at the time, be entitled to claim thereunder; and (ii) such participating banks or other entities shall also, to the fullest extent permitted by law, be entitled to exercise the rights of set-off contained in Section 8.05 as if such participating banks or other entities were Lenders hereunder.
(g) If any Lender (or any bank, financial institution, or other entity to which such Lender has sold a participation) shall make any demand for payment under Section 2.12(b), then within 30 days after any such demand (if, but only if, such demanded payment has been made by the Borrower), the Borrower may, with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower all (but not less than all) of such Lender's Commitment (if any) and the Advances owing to it within the period ending on the later to occur of such 30th day and the last day of the longest of the then current Interest Periods for such Advances, provided that (i) no Event of Default or event that, with the passage of time or the giving of notice, or both, would constitute an Event of Default shall then have occurred and be continuing, (ii) the Borrower shall have satisfied all its presently due obligations to such Lender under this Agreement, and (iii) if such Eligible Assignee designated by the Borrower is not an existing Lender on the date of such demand, the Borrower shall have delivered to the Administrative Agent an administrative fee of $3,500. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignees for all or part of such Lender's Commitment or Advances, then such demand by the Borrower shall become ineffective; it being understood for purposes of this subsection (g) that such assignment shall be conclusively deemed to be on terms acceptable to such Lender, and such Lender shall retain be compelled to consummate such assignment to an Eligible Assignee designated by the sole Borrower, if such Eligible Assignee (i) shall agree to such assignment by entering into an Assignment and Acceptance in substantially the form of Exhibit B hereto with such Lender and (ii) shall offer compensation to such Lender in an amount equal to all amounts then owing by the Borrower to such Lender hereunder made by the Borrower to such Lender, whether for principal, interest, fees, costs or expenses (other than the demanded payment referred to above and payable by the Borrower as a condition to the Borrower's right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any demand such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal ofassignment), or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advanceotherwise.
(fh) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Lender.
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting Anything in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one the contrary notwithstanding, any Lender may (i) assign and pledge all or more Eligible Assignees designated by the Borrower any portion of its Commitment and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it to any Federal Reserve Bank (and its participation in transferees) as collateral security pursuant to Regulation A of the Facility LCs Board of Governors of the Federal Reserve System and all of any Operating Circular issued by such Federal Reserve Bank; provided, that no such assignment shall release the assigning Lender from its obligations hereunder; or (ii) assign its Commitments, Advances and other rights and obligations hereunder within to any of its Affiliates upon notice to, but without the next succeeding 30 days. If any such Eligible Assignee designated by consent of, the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if and the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodAdministrative Agent.
(hj) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Bank”Lender") may grant to a special purpose funding vehicle (an “"SPC”), ") of such Granting Lender identified as such in writing from time to time by the Granting Bank Lender to the Administrative Agent Agent, the Issuing Bank and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank 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 such SPC to make any Advance, (ii) if an such SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank Lender shall be obligated to make such Advance pursuant to the terms hereofhereof and (iii) no SPC or Granting Lender shall be entitled to receive any greater amount pursuant to Section 2.08 or 2.12 than the Granting Lender would have been entitled to receive had the Granting Lender not otherwise granted such SPC the option to provide any Advance to the Borrower. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank Lender to the same extent, and as if, such Advance were made by such Granting BankLender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with a Lender would otherwise be liable so long as, and to the extent that, the related Granting Bank)Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, against or join any other person in instituting against, against such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. Notwithstanding the foregoing, the Granting Lender unconditionally agrees to indemnify the Borrower, the Administrative Agent, the Issuing Bank and each Lender against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be incurred by or asserted against the Borrower, the Administrative Agent, the Issuing Bank or such Lender, as the case may be, in any way relating to or arising as a consequence of any such forbearance or delay in the initiation of any such proceeding against its SPC. Each party hereto hereby acknowledges and agrees that no SPC shall have the rights of a Lender hereunder, such rights being retained by the applicable Granting Lender. Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPC shall have any voting rights hereunder and that the voting rights attributable to any Advance made by an SPC shall be exercised only by the relevant Granting Lender and that each Granting Lender shall serve as the administrative agent and attorney-in-fact for its SPC and shall on behalf of its SPC receive any and all payments made for the benefit of such SPC and take all actions hereunder to the extent, if any, such SPC shall have any rights hereunder. In addition, notwithstanding anything to the contrary contained in this Section 8.07, Agreement any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying of any processing fee thereforother party hereto, assign all or a portion of its interests interest in any Advance Advances to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 SPCLender. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the prior written consent of each Granting Lender, all or any part of whose Advance is being funded by an SPC at the time of such Granting Bank or SPCamendment.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with The Borrower may not assign any of its rights or obligations hereunder without the prior written consent of the BorrowerBank.
(b) The Bank may assign any, each LC Issuer of the Loans and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties prior written notice to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) outstanding Commitment with the consent of the Borrower). Upon execution and delivery by the assignee to the Borrower and the Bank of an instrument in writing pursuant to which such assignee agrees to become a "Bank" hereunder having the Commitment and Loans specified in such instrument, and upon consent thereto by the Borrower and the Bank, to the extent required above, the LC Issuers and assignee shall have, to the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate extent of such Lender or to another Lender and assignment (B) any Lender may at any time, without unless otherwise provided in such assignment with the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance), the Lender assignor thereunder obligations, rights and benefits of the Bank hereunder holding the Commitment and Loans (or portions thereof) assigned to it 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 AcceptanceBank shall, 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 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 extent of such assignment, be released from the Borrower Commitment (or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iiiportion thereof) 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(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lenderso assigned.
(c) The Administrative Agent Bank may sell or agree to sell to one or more other Persons a participation in all or any part of the Loans held by it, or of the Commitment, in which event each purchaser of a participation (a "Participant") shall maintain at its address referred be entitled to the rights and benefits of the provision of (x) Sections 8.01(e) hereof, (y) in Section 8.02 the case only of any Participant that shall have become a copy Participant on or prior to the Closing Date, Sections 5 and 10.03 hereof to the fullest extent thereof and (z) in the case of each Assignment other Participant, Section 5 hereof, but only to the extent of said rights and Acceptance delivered benefits that could have been claimed by the Bank granting the relevant participation to such Participant in the absence of such participation, with respect to its participation in such Loans and accepted by it Commitment as if (and the Borrower shall be directly obligated to such Participant under such provisions as if) such Participant were a register "Bank" for the recordation purposes of said Sections, but shall not have any other rights or benefits under this Agreement of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time Guarantee (the “Register”). The entries Participant's rights against the Bank with respect of such participation to be those set forth in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection agreements executed by the Borrower Bank with the Participant or any Lender at any reasonable time and from time to time upon reasonable prior noticeParticipants).
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, The Bank may furnish any information concerning the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein Guarantor in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf possession of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing Bank from time to time by the Granting Bank to the Administrative Agent assignees and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make pursuant to this Agreement; provided that Participants (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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, including prospective assignees and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting BankParticipants). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent may (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gi) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or including, without limitation, a portion of its Commitment, the Advances Loans owing to it and its participation rights and obligations as a Lender with respect to Letters of Credit Accommodations) and the other Financing Agreements; to its parent company and/or any Affiliate of such Lender which is at least fifty (50%) percent owned by such Lender or its parent company or to one or more Lenders or (ii) assign all, or if less than all a portion equal to at least $5,000,000 in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the aggregate for the assigning Lender’s Lender or assigning Lenders, of such rights and obligations under this AgreementAgreement to one or more Eligible Transferees, each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Acceptance; provided, that, (A) the consent of Agent shall be required in connection with any assignment to an Eligible Transferee pursuant to clause (ii) above, (B) if such Eligible Transferee is not a bank, Agent shall receive a representation in writing by such Eligible Transferee that either (1) no part of its acquisition of its Loans is made out of assets of any employee benefit plan, or (2) after consultation, in good faith, with Borrowers and provision by Borrowers of such information as may be reasonably requested by such Eligible Transferee, the Commitment Amount acquisition and holding of such Commitments and Loans does not constitute a non-exempt prohibited transaction under Section 406 of ERISA and Section 4975 of the assigning Lender being assigned pursuant to each Code, or (3) such assignment is an “insurance company general account,” as such term is defined in the Department of Labor Prohibited Transaction Class Exemption 95.60 (determined issued July 12, 1995) (“PTCE 95-60”), and, as of the date of the assignment, there is no “employee benefit plan” with respect to which the aggregate amount of such general account’s reserves and liabilities for the contracts held by or on behalf of such “employee benefit plan” and all other “employee benefit plans” maintained by the same employer (and affiliates thereof as defined in Section V(a)(1) of PTCE 95-60) or by the same employee organization (in each case determined in accordance with the provisions of PTCE 95-60) exceeds ten (10%) percent of the total reserves and liabilities of such general account (as determined under PTCE 95-60) (exclusive of separate account liabilities) plus surplus as set forth in the National Association of Insurance Commissioners Annual Statement filed with the state of domicile of such Eligible Transferee and (C) such transfer or assignment will not be effective until recorded by the Agent on the Register. As used in this Section, the term “employee benefit plan” shall have the meaning assigned to it in Title I of ERISA and shall also include a “plan” as defined in Section 4975(e)(1) of the Code.
(b) Agent shall maintain a register of the names and addresses of Lenders, their Commitments and the principal amount of their Loans (the “Register”). Agent shall also maintain a copy of each Assignment and Acceptance with respect delivered to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and accepted by it and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be modify the Register to an Eligible Assignee, (iv) the parties give effect to each such assignment shall execute Assignment and deliver to the Administrative Agent, for Acceptance. Upon its acceptance and recording in the Register, an receipt of each Assignment and Acceptance, together with Agent will give prompt notice thereof to Lenders and deliver to each of them a processing and recordation fee of $3,500 (which shall be payable by one or more copy of the parties to the executed Assignment and Acceptance. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and not by the Borrower (except Borrowers, Obligors, Agent and Lenders may treat each Person whose name is recorded in the case Register as a Lender hereunder for all purposes of a demand under Section 8.07(g))this Agreement. The Register shall be available for inspection by Borrowers, Obligors and shall not be payable if the assignee is a Federal Reserve Bank), any Lender at any reasonable time and from time to time upon reasonable prior notice. *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
(vc) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (xi) the assignee thereunder shall be a party hereto and to the other Financing Agreements 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 (including, without limitation, the obligation to participate in Letter of Credit Accommodations) of a Lender hereunder and thereunder and (yii) the assigning 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bd) By executing execution and delivering delivery of an Assignment and Acceptance, 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 Acceptance, such the 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 of the other Financing Agreements or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any of the other instrument or document Financing Agreements furnished pursuant hereto; , (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower Borrowers, Obligors or any of their respective Subsidiaries or the performance or observance by the any Borrower or any Obligor of any of its obligations under this Agreement or any other instrument or document furnished pursuant heretothe Obligations; (iii) such assignee confirms that it has received a copy of this AgreementAgreement and the other Financing Agreements, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agentassigning Lender, such assigning Lender Agent 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; Agreement and the other Financing Agreements, (v) such assignee confirms that it is an Eligible Assignee; (vi) 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 Financing Agreements as are delegated to the Administrative Agent by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; , and (viivi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Financing Agreements are required to be performed by it as a Lender.
(c) The Administrative . Agent shall maintain at its address referred to and Lenders may furnish any information concerning Borrowers, Obligors or their respective Subsidiaries in Section 8.02 a copy the possession of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Agent or any Lender from time to time (the “Register”). The entries in the Register shall be conclusive to assignees and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerParticipants.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement and the other Financing Agreements (including including, without limitation, all or a portion of its Commitment, Commitments and the Advances Loans owing to it and its participation in Facility LCsthe Letter of Credit Accommodations, without the consent of Agent or the other Lenders); provided that provided, that, (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) and the other Financing Agreements shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrowerand Borrowers, the Administrative Obligors, Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Financing Agreements, (iii) *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. the Participant shall not have any rights under this Agreement or any of the other Financing Agreements (the Participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the Participant relating thereto) and all amounts payable by any Borrower or any Obligor hereunder shall be determined as if such Lender had not sold such participation, and (iv) if such Lender shall retain the sole right to approveParticipant is not a bank, without the consent represent that either (A) no part of its acquisition of its participation is made out of assets of any employee benefit plan, or (B) after consultation, in good faith, with Borrowers and provision by Borrowers of such information as may be reasonably requested by the Participant, any amendmentthe acquisition and holding of such participation does not constitute a non-exempt prohibited transaction under Section 406 of ERISA and Section 4975 of the Code, modification or waiver (C) such participation is an “insurance company general account, “ as such term is defined in the “PTCE 95-60”, and, as of any provision the date of this Agreement, other than any such amendment, modification or waiver the transfer there is no “employee benefit plan” with respect to any Advance which the aggregate amount of such general account’s reserves and liabilities for the contracts held by or Commitment on behalf of such “employee benefit plan” and all other “employee benefit plans” maintained by the same employer (and affiliates thereof as defined in which Section V(a)(1) of PTCE 95-60) or by the same employee organization (in each case determined in accordance with the provisions of PTCE 95-60) exceeds ten (10%) percent of the total reserves and liabilities of such Participant has an interest that forgives principal, interest or fees or reduces general account (as determined under PTCE 95-60) (exclusive of separate account liabilities) plus surplus as set forth in the interest rate or fees payable National Association of Insurance Commissioners Annual Statement filed with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment the state of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor domicile of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethe Participant.
(f) Any Nothing in this Agreement shall prevent or prohibit any Lender may, from pledging its Loans hereunder to a Federal Reserve Bank 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 furnished to support of borrowings made by such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it Lenders from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Federal Reserve Bank.
(g) If Borrowers shall assist Agent or any Lender (i) shall make demand for payment permitted to sell assignments or participations under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 13.5 in whatever manner reasonably necessary in order to one enable or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all effect any such assignment or participation, including (but not less than alllimited to) the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the delivery of informational materials, appraisals or other documents for, and the participation of relevant management in meetings and conference calls with, potential assignees or Participants. Each Borrower shall certify the correctness, completeness and accuracy of all descriptions of such Lender’s CommitmentBorrower and its affairs provided, the Advances owing to prepared or reviewed by such Borrower that are contained in any selling materials and all other information provided by it and its participation included in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodmaterials.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 1 contract
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender maymay assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not to be unreasonably withheld or delayed)) of:
(A) Borrowers; provided, that no consent of Borrowers shall be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender or a Related Fund; provided further, that Borrowers shall be deemed to have consented to a proposed assignment unless they object thereto by written notice to Agent within five Business Days after having received notice thereof; and
(B) Agent, Swing Lender, and if demanded by Issuing Bank.
(ii) Assignments shall be subject to the Borrower pursuant following additional conditions:
(A) no assignment may be made to Section 8.07(ga natural person,
(B) no assignment may be made to a Loan Party, an Affiliate of a Loan Party, or any Sponsor Affiliated Entity,
(C) the amount of the Commitments and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent required by that the aggregate amount to be assigned to all such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement new Lenders is at least $5,000,000),
(including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (iD) each such partial assignment shall be made as an assignment of a constant, and not a varying, percentage proportionate part of all of the assigning Lender’s rights and obligations under this Agreement, ,
(ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (ivE) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, Agent an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent by such Lender and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing and recordation fee in the amount of $3,500 3,500, and
(which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (vG) the consent of assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from “Administrative Questionnaire”).
(b) From and after the effective date specified in each that Agent receives the executed Assignment and AcceptanceAcceptance and, if applicable, payment of the required processing fee, (xi) the assignee 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, shall be a “Lender” and shall have the rights and obligations of a Lender hereunder under the Loan Documents, and (yii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from its any future obligations under this Agreement and, (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 AgreementAgreement and the other Loan Documents, such Lender shall cease to be a party hereto (although an and thereto); provided, that nothing contained herein shall release any assigning Lender shall continue to be entitled to indemnification pursuant to from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 8.04(c15 and Section 17.9(a)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the assignee 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 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 or any other instrument or document Loan 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 any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; , (iii) such assignee Assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender 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 confirms that it is an Eligible Assignee; (vi) such assignee Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agent, by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; , and (viivi) such assignee 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.
(cd) The Administrative 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 Immediately upon Agent’s receipt of the names required processing fee, if applicable, and addresses delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Lenders Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment Amount ofallocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, its Commitment, and principal amount the other rights and interests of the Advances owing to, each that Lender from time to time (the “RegisterOriginating Lender”). The entries in ) hereunder and under the Register other Loan Documents; provided, that (i) the Originating Lender shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as remain a Lender hereunder “Lender” for all purposes of this Agreement. The Register shall be available for inspection by Agreement and the Borrower or any Lender at any reasonable time other Loan Documents and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneethe Participant receiving the participating interest in the Obligations, the Administrative Agent shallCommitments, if such Assignment and Acceptance has been completed the other rights and is in substantially interests of the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.Originating Lender hereunder shall not
(e) Each Lender may sell participations to one or more banks or other entities (each, constitute a “Participant”) in Lender” hereunder or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it other Loan Documents and its participation in Facility LCs); provided that (i) such the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) such the Originating Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the BorrowerBorrowers, the Administrative Agent Agent, and the other Lenders shall continue to deal solely and directly with such the Originating Lender in connection with such the Originating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv) such no Lender shall retain transfer or grant any participating interest under which the sole Participant has the right to approveapprove any amendment to, without the or any consent of any Participant, any amendment, modification or waiver of with respect to, this Agreement or any provision of this Agreementother Loan Document, other than any except to the extent such amendmentamendment to, modification or consent or waiver with respect to this Agreement or of any Advance or Commitment other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant has an is participating, (B) reduce the interest that forgives principalrate applicable to the Obligations hereunder 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 Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from Participant through such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements than a waiver of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(adefault interest), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iiiE) does not consent decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party, an Affiliate of a Loan Party, or any Sponsor Affiliated Entity, and (vii) all amounts payable by Borrowers hereunder shall be determined as the case may be, the Borrower may demand that if such Lender assign 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 accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all respect of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation participating interest in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with amounts owing under this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank Agreement to the same extent, and extent as if, such Advance if the amount of its participating interest were made by such Granting Bankowing directly to it as a Lender under this Agreement. Each party hereto hereby agrees that no SPC The rights of any Participant only shall be liable for derivative through the Originating Lender with whom such Participant participates and no Participant shall have any indemnity or similar payment obligation rights under this Agreement (all liability for which shall remain with or the Granting Bank). In furtherance other Loan Documents or any direct rights as to the other Lenders, Agent, Borrowers, the Collateral, or otherwise in respect of the foregoing, each party hereto hereby agrees (which agreement Obligations. No Participant shall survive have the termination right to participate directly in the making of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to decisions by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCLenders among themselves.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, upon notice to the Borrowers and the Agent and with the prior written consent of the Borrowerconsent, each LC Issuer and the Administrative Agent (which consents shall not to be unreasonably withheld or delayed), and if demanded by of the Borrower pursuant to Section 8.07(g) shall to the extent required by such SectionAgent, assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances Loans and other amounts owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, however, that (i) each reserved; (ii) reserved, (iii) reserved, (iv) except in the case of an assignment to a Person that, immediately prior to such assignment shall be assignment, was a Lender, an Affiliate of a constant, and not a varying, percentage Lender or an Approved Fund or an assignment of all of the assigning a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount amount of the Loan of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if less, the entire outstanding amount of the Loan held by such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment) unless the Agent otherwise agrees, (iiiv) each such assignment shall be to an Eligible Assignee, (ivvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, and the parties to such assignment (other than the Borrowers and the Agent) shall deliver together with therewith any Note subject to such assignment and a processing and recordation fee of $3,500 (which except no such fee shall be payable by one or more of the parties for assignments to the Assignment and Acceptancea Lender, and not by the Borrower (except in the case an Affiliate of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve BankLender or an Approved Fund), and (vvii) any Lender may, with notice to the consent Borrowers, assign all or a portion of the Borrower shall not be required after the occurrence its rights and during the continuance obligations to any of any Event of Defaultits Affiliates or to another Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (other than its rights under Section 2.12, 2.15 and 9.04 to the extent any claim thereunder relates to an event arising prior such assignment) 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 hereto).
(although an assigning b) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained effective unless and until, in this Section 8.07(a) addition to the contraryother 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 (A) which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the BorrowerAgent, the LC Issuers 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 shall not be required with respect to or any Lender hereunder (and interest accrued thereon). Notwithstanding the foregoing, in the event that any assignment by of rights and obligations of any Defaulting Lender to an Affiliate 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 or to another Lender and (B) any Lender may at any time, without the consent for all purposes of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no until such assignment shall release the transferor Lender from any of its obligations hereundercompliance occurs.
(bc) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 other Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents or any other instrument or document furnished pursuant heretohereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower Loan Parties or the performance or observance by the Borrower Borrowers of any of its their obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e6.01(j) 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 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 AgreementAgreement and the other Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(cd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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 A hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers.
(e) The Administrative Agent shall maintain at its address referred to in Section 8.02 9.02 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 Lenders and the Commitment Amount of, and principal amount of the Advances Loans owing to, to each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(ef) Each Lender may may, without the consent of the Agent or any Loan Party, sell participations to one or more banks or other entities (each, other than the Borrowers or any of their Affiliates that is not a “Participant”Permitted Holder) in or to all or a portion of its rights and/or and obligations under this Agreement (including all or a portion of its Commitment, the Advances Loans owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the Borrowerholder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Loan Document, other than or consent to any departure by any Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect consent would require the affirmative vote of the Lender from which it purchased its participation pursuant to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such AdvanceSection 9.01(a).
(fg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to Holdings, the Borrower Borrowers or their Subsidiaries furnished to such Lender by or on behalf of the BorrowerBorrowers; provided 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 Borrower Information relating to Holdings, the Borrower Borrowers or their Subsidiaries received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period9.08.
(h) Notwithstanding anything to the contrary contained hereinany other provision set forth in this Agreement, any Lender (may at any time create a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such security interest in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part portion of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation its rights under this Agreement (all liability for which shall remain including the portion of any Loan owing to it and any Notes held by it), including, without limitation, in favor of any Federal Reserve Bank in accordance with the Granting Bank). In furtherance Regulation A of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination Board of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws Governors of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may Federal Reserve System.
(i) with The Borrowers, upon receipt of written notice tofrom the relevant Lender, but agree to issue Notes to any Term Lender to facilitate transactions of the type described in paragraph (h) above.
(j) Neither Holdings nor any Borrower shall have the right to assign its rights hereunder or any interest herein without the prior written consent ofof each of the Lenders (except, in the Borrower and the Administrative Agent and without paying any processing fee thereforcase of SRAC, assign all or a portion of its interests in any Advance pursuant to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC6.01(d)).
Appears in 1 contract
Assignments and Participations. (a) Each Lender mayBank may and, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gsubsection (g) hereof, shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations of the assigning Bank under this AgreementAgreement (except that Term Advances and Commitments may be assigned separately), (ii) in the case of a partial assignment, the amount of the Commitment Amount or Term Advances of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, 25,000,000 and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment5,000,000, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the RegisterRegister (as defined in Section 8.07(c)), an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default3,500. Upon such execution, delivery, acceptance acceptance, and recording, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least three Business Days after the execution thereof, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder Bank hereunder, and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s Bank's rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)hereto). Notwithstanding anything contained in this Section 8.07(a) to the contrary, foregoing (A) the consent unless such assignment is being made on demand of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect Borrower pursuant to any assignment by any Lender to an Affiliate of such Lender or to another Lender and subsection (B) any Lender may at any time, without the consent of the Borrowerg)), any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of Bank assigning its rights and obligations under this Agreement to a Federal Reserve Bankmay retain any Competitive Advances made by it outstanding at such time, provided that no and in such assignment case shall release the transferor Lender from retain its rights hereunder in respect of any of its obligations hereunderAdvances so retained until such Advances have been repaid in full in accordance with this Agreement.
(b) By executing and delivering an Assignment and Acceptance, the Lender Bank 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 Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; ;
(ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; ;
(iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(esubsection (e) of Article IV 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 Administrative Agent, such assigning Lender Bank or any other Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; ;
(v) such assignee confirms that it is an Eligible Assignee; , except for any required consent of the Borrower and Administrative Agent;
(vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent Administrative Agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and and
(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 LenderBank.
(c) The Administrative 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 Lenders Banks and the Commitment Amount of, and principal amount of the Advances owing to, each Lender Bank from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders Banks may treat each Person whose name is recorded in the Register as a Lender Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Bank and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AB hereto, and if the processing fees required by Section 8.07 have been paid to Administrative Agent, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and Register, (iii) give prompt notice thereof to the Borrower and (iv) send a copy thereof to the Borrower.
(e) Each Lender Bank may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) such Lender’s Bank's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the Borrower, the Administrative Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such Lender’s Bank's rights and obligations under this Agreement and (iv) and; provided further, however, that such Lender Bank shall retain not agree with any such bank or other financial institution to permit such bank or other financial institution to enforce the sole right obligations of the Borrower relating to approve, without the consent Advances or to approve of any Participant, any amendment, modification or waiver of any provision of this Agreement, Agreement (other than any such amendmentamendments, modification modifications, or waiver waivers with respect to any Advance or Commitment decrease in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or any fees payable with hereunder or the amount of principal or rate of interest which is payable in respect to of such Advances or any such Advance or Commitment, postpones any date extension of the dates fixed for any regularly scheduled the payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethereof).
(f) Any Lender Bank 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 furnished to such Lender Bank by or on behalf of the Borrower; provided that, that prior to any such disclosure, the assignee or participant or proposed assignee or participant participant, if not an Eligible Assignee, shall agree to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Bank.
(g) If any Lender (i) Bank shall make demand for payment under or shall notify the Borrower that it is affected by an event described in Section 2.11(a), 2.11(b) 2.11 or 2.14, (ii) 2.15 hereunder or shall deliver any notice to notify the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders2.13 hereunder, then (in the case of clause (i)) within 60 15 days after such demand (if, but only if, or such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may benotice, the Borrower may (i) demand that such Lender Bank assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 1 contract
Sources: 364 Day Competitive Advance/Revolving Credit Agreement (Union Pacific Resources Group Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Administrative Agent and the Borrower (such consent not to be unreasonably withheld and, in the case of the Borrower, each LC Issuer and the Administrative Agent (which consents such consent shall not be unreasonably withheld or delayedrequired if an Event of Default has occurred and is continuing), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) prior to the effectiveness of the Term Loan Conversion Option, the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the lesser of (A) $10,000,000 or, if less, the entire amount and (B) all of such Lender’s Commitment's rights and obligations and, and if the preceding clause (A) is applicable, shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment1,000,000, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with Acceptance and such parties (other than when Citibank is an assigning party) shall also deliver to the Administrative Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance (and copies of the related consents of the Borrower and the Administrative Agent to such assignment) delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AB 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.
(e) Each Lender may assign to one or more banks or other entities any Advance made by it.
(f) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsit); provided provided, however, that (i) such Lender’s 's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any promissory note held pursuant to Section 2.01(b) for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (ivv) the holder of any such participation, other than an Affiliate of such Lender, shall not be entitled to require such Lender to take or omit to take any action hereunder, except action (A) extending the time for payment of interest on, or the final maturity of any portion of the principal amount of, the Advances or (B) reducing the principal amount of or the rate of interest payable on the Advances. Without limiting the generality of the foregoing: (i) such participating banks or other entities shall be entitled to the cost protection provisions contained in Sections 2.08, 2.12 and 8.04(b) only if, and to the same extent, the Lender from which such participating banks or other entities acquired its participation would, at the time, be entitled to claim thereunder; and (ii) such participating banks or other entities shall also, to the fullest extent permitted by law, be entitled to exercise the rights of set-off contained in Section 8.05 as if such participating banks or other entities were Lenders hereunder.
(g) If any Lender (or any bank, financial institution, or other entity to which such Lender has sold a participation) shall make any demand for payment under Section 2.11(b), then within 30 days after any such demand (if, but only if, such demanded payment has been made by the Borrower), the Borrower may, with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower all (but not less than all) of such Lender's Commitment (if any) and the Advances owing to it within the period ending on the later to occur of such 30th day and the last day of the longest of the then current Interest Periods for such Advances, provided that (i) no Event of Default or event that, with the passage of time or the giving of notice, or both, would constitute an Event of Default shall then have occurred and be continuing, (ii) the Borrower shall have satisfied all its presently due obligations to such Lender under this Agreement, and (iii) if such Eligible Assignee designated by the Borrower is not an existing Lender on the date of such demand, the Borrower shall have delivered to the Administrative Agent an administrative fee of $3,500. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignees for all or part of such Lender's Commitment or Advances, then such demand by the Borrower shall become ineffective; it being understood for purposes of this subsection (g) that such assignment shall be conclusively deemed to be on terms acceptable to such Lender, and such Lender shall retain be compelled to consummate such assignment to an Eligible Assignee designated by the sole Borrower, if such Eligible Assignee (i) shall agree to such assignment by entering into an Assignment and Acceptance in substantially the form of Exhibit B hereto with such Lender and (ii) shall offer compensation to such Lender in an amount equal to all amounts then owing by the Borrower to such Lender hereunder made by the Borrower to such Lender, whether for principal, interest, fees, costs or expenses (other than the demanded payment referred to above and payable by the Borrower as a condition to the Borrower's right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any demand such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal ofassignment), or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advanceotherwise.
(fh) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Lender.
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting Anything in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one the contrary notwithstanding, any Lender may (i) assign and pledge all or more Eligible Assignees designated by the Borrower any portion of its Commitment and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it to any Federal Reserve Bank (and its participation in transferees) as collateral security pursuant to Regulation A of the Facility LCs Board of Governors of the Federal Reserve System and all of any Operating Circular issued by such Federal Reserve Bank; provided, that no such assignment shall release the assigning Lender from its obligations hereunder; or (ii) assign its Commitments, Advances and other rights and obligations hereunder within to any of its Affiliates upon notice to, but without the next succeeding 30 days. If any such Eligible Assignee designated by consent of, the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if and the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodAdministrative Agent.
(hj) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Bank”Lender") may grant to a special purpose funding vehicle (an “"SPC”), ") of such Granting Lender identified as such in writing from time to time by the Granting Bank Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank 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 such SPC to make any Advance, (ii) if an such SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank Lender shall be obligated to make such Advance pursuant to the terms hereofhereof and (iii) no SPC or Granting Lender shall be entitled to receive any greater amount pursuant to Section 2.07 or 2.11 than the Granting Lender would have been entitled to receive had the Granting Lender not otherwise granted such SPC the option to provide any Advance to the Borrower. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank Lender to the same extent, and as if, such Advance were made by such Granting BankLender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with a Lender would otherwise be liable so long as, and to the extent that, the related Granting Bank)Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, against or join any other person in instituting against, against such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. Notwithstanding the foregoing, the Granting Lender unconditionally agrees to indemnify the Borrower, the Administrative Agent and each Lender against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be incurred by or asserted against the Borrower, the Administrative Agent or such Lender, as the case may be, in any way relating to or arising as a consequence of any such forbearance or delay in the initiation of any such proceeding against its SPC. Each party hereto hereby acknowledges and agrees that no SPC shall have the rights of a Lender hereunder, such rights being retained by the applicable Granting Lender. Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPC shall have any voting rights hereunder and that the voting rights attributable to any Advance made by an SPC shall be exercised only by the relevant Granting Lender and that each Granting Lender shall serve as the administrative agent and attorney-in-fact for its SPC and shall on behalf of its SPC receive any and all payments made for the benefit of such SPC and take all actions hereunder to the extent, if any, such SPC shall have any rights hereunder. In addition, notwithstanding anything to the contrary contained in this Section 8.07, Agreement any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying of any processing fee thereforother party hereto, assign all or a portion of its interests interest in any Advance Advances to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 SPCLender. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the prior written consent of each Granting Lender, all or any part of whose Advance is being funded by an SPC at the time of such Granting Bank or SPCamendment.
Appears in 1 contract
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender maymay assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees (each, an "Assignee"), with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not be unreasonably withheld or delayed)) of:
(A) Borrowers; provided, that no consent of Borrowers shall be required (1) if a Default or Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Borrowers shall be deemed to have consented to a proposed assignment unless Administrative Borrower objects thereto by written notice to Agent within five Business Days after having received notice thereof; and
(B) Agent, Swing Lender, and if demanded by the Borrower pursuant to Section 8.07(gIssuing Bank.
(ii) Assignments shall be subject to the extent required by such Sectionfollowing additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party, assign to one or more banks or an Affiliate of a Loan Party, (C) the amount of the Commitments and the other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignmentassignment is delivered to Agent) shall be in no event be less than $10,000,000 or, if less, the entire a minimum amount of such Lender’s Commitment, and shall be an integral multiple (unless waived by Agent) of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower 5,000,000 (except in the case of a demand under Section 8.07(g)), and such minimum amount shall not be payable if the assignee is a Federal Reserve Bank), and apply to (vI) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 assignment or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment delegation by any Lender to any other Lender, an Affiliate of such Lender or to another Lender and (B) any Lender may at any timeLender, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion Related Fund of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.or
Appears in 1 contract
Assignments and Participations. (a) The Loan Documents shall be binding upon and inure to the benefit of the Borrower, the Lenders, the Administrative Agent, all future holders of the Notes and their respective successors and assigns, except that, other than as provided in Section 8.3(e), the Borrower may not assign, delegate or transfer any of its rights or obligations under the Loan Documents without the prior written consent of the Administrative Agent and each Lender.
(b) Each Lender mayshall have the right at any time, with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (which consents shall not be unreasonably withheld or delayeddelayed and, with respect to the Borrower, shall not be required upon the occurrence and during the continuance of an Event of Default), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Sectionsell, assign to one assign, transfer or more banks or other entities negotiate all or a portion any part of its such Lender's rights and obligations under this Agreement (including all or a portion of its Commitmentthe Loan Documents to any Eligible Assignee, the Advances owing to it and its participation in Facility LCs); provided that that:
(i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning assignor Lender’s 's rights and obligations under this Agreement, the Loan Documents; and
(ii) the Commitment Amount of the assigning Lender being assigned pursuant to each assignor and such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) assignee shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, Agent three copies of an Assignment and AcceptanceAcceptance Agreement executed by each of them, along with an assignment fee in the sum of $3,500 for the account of the Administrative Agent. Upon receipt of such number of executed copies of each such Assignment and Acceptance Agreement, together with a processing the assignment fee therefor and recordation fee the consents required to such assignment, if required, the Administrative Agent shall record the same and execute not less than two copies of $3,500 (which shall be payable by such Assignment and Acceptance Agreement in the appropriate place, deliver one or more of the parties such copy to the Assignment assignor and Acceptanceone such copy to the assignee, and not by deliver one photocopy thereof, as executed, to the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultBorrower. Upon such execution, delivery, acceptance and recording, from From and after the effective date specified in each in, and as defined in, such Assignment and AcceptanceAcceptance Agreement, (x) the assignee thereunder shall be shall, unless already a Lender, become a party hereto and shall, for all purposes of the Loan Documents, be deemed a "Lender" and, to the extent that rights and obligations hereunder have been assigned to it pursuant to provided in such Assignment and AcceptanceAcceptance Agreement, have the rights and obligations of a assignor Lender hereunder and (y) 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 shall be released from its obligations under this Agreement andand the other Loan Documents. The Borrower agrees that, if requested, in connection with each such assignment, it shall at its own cost and expense execute and deliver to the case Administrative Agent or such assignee a Note, each payable to the order of an such assignee and dated the Effective Date. The Administrative Agent shall be entitled to rely upon the representations and warranties made by the assignee under each 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 .
(although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(ac) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Each Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign grant participations in all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations Loan Documents to one or more banks banks, insurance companies, financial institutions, pension funds or other entities (eachmutual funds, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) such Lender’s 's obligations under this Agreement the Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto to the Loan Documents for the performance of such obligations, (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement the Loan Documents, and (iv) such Lender shall retain the sole right to approve, without the consent voting rights of any Participant, any amendment, modification or waiver holder of any provision participation shall be limited to decisions that only do any of this Agreement, other than any such amendment, modification or waiver with respect the following:
(1) subject the participant to any Advance additional obligation, (2) reduce the principal of, or Commitment in which such Participant has an interest that forgives principalon, interest the Loans or any fees or reduces other amounts payable under the interest rate Loan Documents, or fees payable with respect to any such Advance or Commitment, postpones (3) postpone any date fixed for any regularly scheduled the payment of principal of, or interest or fees on, the Loans or any fees or other amounts payable under the Loan Documents. The Borrower acknowledges and agrees that any such Advance or Commitmentparticipant shall for purposes of Sections 2.10, extends 2.12, 2.13 and 2.16 be deemed to be a "Lender"; provided, however, the Borrower shall not, at any Commitmenttime, releases be obligated to pay any guarantor participant in any interest of any Lender hereunder any sum in excess of the sum which the Borrower would have been obligated to pay to such Advance or releases any substantial portion Lender in respect of collateral, if any, securing any such Advanceinterest had such Lender not sold such participation.
(fd) Any Lender may, in connection with If any (i) assignment or participation or proposed assignment or participation is made pursuant to subsection (b) above or (ii) any participation is granted pursuant to subsection (c) of this Section 8.07shall be made to any Person that is organized under the laws of any jurisdiction other than the United States, disclose to the assignee or participant or proposed assignee or participant, any information relating as the case may be, shall furnish such certificates, documents or other evidence to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority LendersAgent, then (in the case of clause (i)) within 60 days after , and to the Borrower and the Lender which sold such demand (ifparticipation, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as shall be required by Section 2.10(c).
(e) No Lender shall, as between and among the case may beBorrower, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all be relieved of any of its other obligations under the Loan Documents as a result of any sale, assignment, transfer or negotiation of, or granting of participations in, all or any part of its rights and obligations hereunder within under Loan Documents, except that a Lender shall be relieved of its obligations to the next succeeding 30 days. If extent of any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lendersale, assignment, transfer, or if negotiation of all or any part of its rights and obligations under the Borrower shall fail Loan Documents pursuant to designate any such Eligible Assignee for all subsection (b) of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodSection.
(hf) Notwithstanding anything to the contrary contained hereinin this Section, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing at any time or from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower assign all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in rights under the Loan Documents to a Federal Reserve Bank, provided that any Advance to the Granting Bank or to any financial institution (consented to by the Borrower such assignment shall not release such assignor from its obligations thereunder and Administrative Agent, which consents provided further that no assignment fee shall be unreasonably withheld or delayed) providing liquidity and/or credit support payable 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 8.07(h) may not be amended Administrative Agent in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCconnection therewith.
Appears in 1 contract
Sources: Revolving Credit Agreement (Cleco Utility Group Inc)
Assignments and Participations. (a) Each Lender mayInvestor may upon at least 30 days' notice to VFCC, the Deal Agent and the Liquidity Agent, and prior to the Termination Date with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent Seller (which consents consent shall not be unreasonably withheld or delayedwithheld), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its CommitmentAgreement; provided, the Advances owing to it and its participation in Facility LCs); provided however, that (i) each such -------- ------- assignment shall be of a constant, and not a varying, varying percentage of all of the assigning Lender’s Investor's rights and obligations under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender Investor being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the lesser of (A) $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 or such Lender’s entire in excess of that amount and (B) the full amount of the assigning Investor's Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Deal Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which 3,000 or such lesser amount as shall be payable by one or more of the parties to the Assignment and Acceptance, and not approved by the Borrower (except in the case of a demand under Section 8.07(g))Deal Agent, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in parties to each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release have agreed to reimburse the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and AcceptanceDeal Agent, the Lender assignor thereunder Liquidity Agent and VFCC for all reasonable fees, costs and expenses (including, without limitation, the assignee thereunder confirm to reasonable fees and agree with out-of-pocket expenses of counsel for each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, 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 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 Deal Agent, the performance or observance Liquidity Agent and VFCC) incurred by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Deal 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Liquidity Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible AssigneeVFCC, the Administrative Agent shallrespectively, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement assignment and (ivvi) there shall be no increased costs, expenses or taxes incurred by the Deal Agent, the Liquidity Agent or VFCC upon such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07participation; and provided, disclose to --------- further, that upon the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the effective date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, assignment the Advances owing to it and its participation in the Facility LCs and all provisions of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.-------- Section
Appears in 1 contract
Sources: Loan Purchase and Servicing Agreement (First International Bancorp Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g2.08, 2.12, 3.07, 4.02 or 4.06, after such Lender has declined to vote in favor of extension of the Revolver Termination Date or LC Termination Date, as the case may be, pursuant to Section 2.14 or 3.11, or after any Lender has assigned all or any portion of its rights and obligations under this Agreement to any Affiliate without the consent of the Borrower, upon at least 10 days' notice to such Lender and the Agent) shall to the extent required by such Sectionwill, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion portion, respectively, of its Commitment, A Commitment and the A Advances owing to it and/or of its LC Commitment and its participation participations in Facility LCsLetter of Credit Liability); provided provided, however, that (i) each such respective assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this AgreementAgreement (other than any B Advances) (w) in respect of the assigning A Lender's A Commitment and A Advances and/or (x) in respect of the assigning Lender's LC Commitment and participations in Letter of Credit Liability, as the case may be, that is constant and not varying over time, (ii) the respective amounts of the rights and obligations (y) under the A Commitment Amount and A Advances of the assigning A Lender and/or (z) under the LC Commitment and participations in Letter of Credit Liability of the assigning lender, as the case may be, being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such partial assignment) shall in no event be less than 5% of all such rights and obligations or less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 5,000,000 (or an integral multiple of $1,000,000 or such Lender’s entire Commitment500,000 in excess thereof), as the case may be, in the case of each of (y) and/or (z), (iii) each such assignment shall be to an Eligible AssigneeAssignee consented to by the Borrower (which shall not unreasonably withhold its consent); provided, that, the Borrower's consent need not be obtained if such assignment is made to an Affiliate of the assigning Lender, provided that any Lender so assigning to any of its Affiliates shall give prompt notice thereof to the Borrower and the Agent, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 10.07(a) shall be arranged by the Borrower (at its expense, including, without limitation, payment of the processing and recordation fee referred to in subclause (vi) hereof) after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments which together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 10.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which 2,000; provided, that, no such fee shall be payable in connection with an assignment by one or more an assigning Lender to an Affiliate of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Defaultsuch assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)hereto). Notwithstanding anything contained Without limiting the qualifications set forth in the first sentence of this Section 8.07(a) 10.07(a), but to the contraryclarify such sentence, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to having both an Affiliate of such Lender or to another Lender A Commitment and (B) any Lender an LC Commitment may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part a portion of its rights under this Agreement and obligations relating to one of these commitments and at the same time assign none, all, the same portion or a Federal Reserve Bankdifferent portion of its rights and obligations relating to the other commitment, provided that no any assignment of any portion (including all) of a Lender's rights and obligations relating to its A Commitment shall include an assignment of the same portion (including all if applicable) of such Lender's rights and obligations relating to its A Advances and any assignment of any portion (including all) of a Lender's rights and obligations relating to its LC Commitment shall release include an assignment of the transferor Lender from any same portion (including all if applicable) of its such Lender's rights and obligations hereunderrelating to participations in Letter of Credit Liability.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 LC Subsidiary or the performance or observance by the Borrower or any LC Subsidiary of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 6.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative Agent, the Issuing Bank, 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent or the Issuing Bank to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent or the Issuing Bank 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 10.02 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 Lenders and the LC Commitment Amount of and A Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AB hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerBorrower and the Issuing Bank.
(e) Each Lender may assign or participate to one or more banks or other entities any B Advance held by it without regard to any of the restrictions placed on assignments elsewhere in this Section 10.07 or this Agreement; provided, that, any participation shall be made in accordance with subsection (f) hereof and provided, further, that any assignee of a B Advance that is not then a Lender hereunder shall not be entitled to demand any payments under Section 2.08, 2.12 or 4.02 hereof and shall have no voting rights or other rights of a Lender hereunder other than the right to demand and receive interest and principal payments at the times when due with respect to the B Advance owned by it.
(f) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, A Commitment and LC Commitment and the Advances owing to it and its participation in Facility LCs)it; provided provided, however, that (i) such Lender’s 's obligations under this Agreement (including, without limitation, its A Commitment to the Borrower hereunder and LC Commitment) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the owner of any Advance for all purposes of this Agreement, and (iv) the Borrower, the Administrative Issuing Bank, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement Agreement, provided, further, that, to the extent of any such participation (unless otherwise stated therein and subject to the preceding proviso), the purchaser of such participation shall, to the fullest extent permitted by law, have the same rights and benefits hereunder as it would have if it were a Lender hereunder; and provided, further, that each such participation shall be granted pursuant to an agreement providing that the purchaser thereof shall not have the right to consent or object to any action by the selling Lender (iv) such Lender who shall retain the sole right to approve, without the consent such right) other than an action which would (i) reduce principal of or interest on any ParticipantAdvance, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver amount due hereunder with respect to any Advance the Letters of Credit or Commitment other amounts or fees in which such Participant purchaser has an interest that forgives principalinterest, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones (ii) postpone any date fixed for any regularly scheduled payment of principal of, of or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing on any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders amounts due with respect to Eurodollar Advances Letters of Credit or other amounts or such fees, or (iii) does not consent to an amendment extend the LC Termination Date or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such LenderRevolver Termination Date, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(hg) Notwithstanding anything Upon written request of the Borrower to an A Lender, such A Lender shall, to the contrary contained hereinextent consistent with the policies of such A Lender, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to inform the Borrower all or any part of the Dollar amount of any Advance Full Term Participation (as hereinafter defined) that such Granting Bank would otherwise be obligated to make pursuant to this AgreementA Lender has entered into; provided provided, however, 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 Bank no A Lender shall be obligated to make disclose such Advance information if the disclosure thereof would constitute a violation of law or regulation or violate any confidentiality agreement to which such A Lender is subject. For the purposes of this subsection (g), "Full Term Participation" means a participation by an A Lender to another Person whereby such other Person has purchased (pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreementa participation agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance such A Lender's A Commitment from the effective date of such participation agreement to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCRevolver Termination Date.
Appears in 1 contract
Sources: Credit Agreement (Gap Inc)
Assignments and Participations. (a) Each Lender maySubject to the provisions of Section 10.11(j), with after first obtaining the prior written consent approval of the Agent and Borrower, each LC Issuer and the Administrative Agent (which consents shall approval will not be unreasonably withheld or delayed(and which approval from Borrower shall not be required upon the occurrence and during the continuance of an Event of Default), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, each Lender may assign to one or more banks banks, finance companies, insurance or other entities institutions all or a portion of its rights and obligations under this Agreement in accordance with the provisions of this Section (including without limitation all or a portion of its Commitment, Commitment and the Advances portion of the Loan owing to it and its participation in Facility LCsit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s 's rights and obligations under this AgreementAgreement and the assignment shall cover the same percentage of such Lender's Commitment and the portion of the Loan owing to it, (ii) unless Agent and Borrower otherwise consent (which consent of Borrower shall not be required upon the occurrence and during the continuance of an Event of Default), the aggregate amount of the Commitment Amount of the assigning Lender being assigned to a Person that is not already a Lender hereunder (provided such Lender was also a Lender on the Closing Date) pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than Five Million Dollars ($10,000,000 or, if less, the entire amount of such Lender’s Commitment, 5,000,000) and shall be an integral multiple of One Million Dollars ($1,000,000 or such Lender’s entire Commitment1,000,000), (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance approval and recording in the Registeracceptance, an Assignment and Acceptance, together with Assumption and (iv) Agent shall receive from the assignor or assignors for its sole account a processing and recordation fee of Three Thousand Dollars ($3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g3,000)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance approval and recordingacceptance, from and after upon the effective date specified in each the applicable Assignment and AcceptanceAssumption, (xA) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been validly and effectively assigned to it pursuant to such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder and (yB) the Lender Lender-assignor thereunder shall, to the extent that rights and obligations hereunder have been validly and effectively assigned by it pursuant to such Assignment and AcceptanceAssumption, 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and AcceptanceAssumption, the Lender 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 AcceptanceAssumption, 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 Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan 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 REIT, Borrower, any Subsidiary, any Investment Affiliate, or any Agreement Party or the performance or observance by the Borrower REIT, Borrower, any Subsidiary, any Investment Affiliate, or any Agreement Party of any of its their respective obligations under this Agreement any Loan 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 financial statements referred to in Section 4.01(e) Article V or delivered pursuant to Article V to the date of such assignment and such other Loan 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 AcceptanceAssumption; (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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent Agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; and (viivi) 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.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 on the counterpart signature pages hereof a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recordation of shall record the names and addresses of the Lenders each Lender and the Commitment Amount of, and principal amount of the Advances Loan owing to, each such Lender from time to time (the “Register”)time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is so recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assigneeassignee, the Administrative Agent shall, if such Assignment and Acceptance Assumption has been properly completed and is in substantially the form of Exhibit A, (i) accept such Assignment and AcceptanceAssumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrower. Upon request, Borrower will execute and deliver to Agent an appropriate replacement promissory note or replacement promissory notes in favor of each assignee (and assignor, if such assignor is retaining a portion of its Commitment and the Loan) reflecting such assignee's (and assignor's) Pro Rata Share(s) of the Facility. Upon execution and delivery of such replacement promissory notes, the original promissory note or notes evidencing all or a portion of the Commitment and the Loan being assigned shall be canceled and returned to Borrower.
(e) Each Lender may sell participations to one or more banks banks, finance companies, insurance or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including without limitation all or a portion of its Commitment, Commitment and the Advances portion of the Loan owing to it and its participation in Facility LCsit); provided provided, however, that (i) such Lender’s 's obligations under this Agreement (including without limitation its Commitment to Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and with regard to any and all payments to be made under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent holder of any Participantsuch participation shall not be entitled to voting rights under this Agreement except that such Participant may have the contractual right in the applicable participation agreement to prevent (A) increases in the Facility, any amendment(B) extensions of the Maturity Date (except pursuant to Section 2.09 hereof), modification or waiver of any provision of (C) decreases in the interest rates described in this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces and (D) a release of the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such AdvanceREIT Guaranty.
(f) Any Lender may, Borrower will use reasonable efforts to cooperate with Agent and Lenders in connection with any the assignment of interests under this Agreement 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 furnished to such Lender by or on behalf sale of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)participations herein.
(g) If Anything in this Agreement to the contrary notwithstanding, and without the need to comply with any of the formal or procedural requirements of this Agreement, including Section 10.11, any Lender (i) shall make demand for payment may at any time and from time to time pledge and assign all or any portion of its rights under Section 2.11(a), 2.11(b) all or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect Loan Documents to Eurodollar Advances a Federal Reserve Bank; provided that no such pledge or (iii) does not consent to an amendment assignment shall release such Lender from its obligations thereunder. To facilitate any such pledge or waiver that requires assignment, Agent shall, at the consent request of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as enter into a letter agreement with the case may beFederal Reserve Bank in, or substantially in, the Borrower may demand that such Lender assign in accordance with this Section 8.07 form of the exhibit to one or more Eligible Assignees designated by the Borrower and reasonably acceptable Appendix C to the Administrative Agent and the LC Issuers all (but not less than all) Federal Reserve Bank of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodNew York Operating Circular No 12.
(h) Notwithstanding anything Anything in this Agreement to the contrary contained hereinnotwithstanding, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower assign all or any part portion of any Advance that its rights and obligations under this Agreement to a Lender Affiliate of such Granting Bank would otherwise be obligated to make pursuant to this Agreement; Lender without first obtaining the approval of Agent and Borrower, provided that (i) nothing herein shall constitute a commitment by such Lender gives Agent and Borrower at least fifteen (15) days prior written notice of any SPC to make any Advancesuch assignment, (ii) if the parties to each such assignment execute and deliver to Agent an SPC elects not Assignment and Assumption, and (iii) Agent receives from assignor for its sole account a processing fee of Three Thousand Dollars ($3,000).
(i) No Lender shall be permitted to exercise such option assign, or otherwise fails to provide sell a participation interest in, all or any part portion of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, its rights and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation obligations under this Agreement to Borrower or any Affiliate of Borrower.
(all liability for j) Anything in this Agreement to the contrary notwithstanding, so long as no Event of Default shall have occurred and be continuing, no Lender shall be permitted to enter into an assignment of its rights and obligations hereunder which shall remain with the Granting Bankwould result in such Lender holding a Commitment of less than Ten Million Dollars ($10,000,000). In furtherance the event Agent ceases to hold a Commitment of less than ten percent (10%) of the foregoingFacility, each party hereto hereby agrees (which agreement Agent shall survive resign from the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full performance of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower functions and Administrative Agentduties hereunder; provided, which consents however, that no such resignation shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for required during the account continuance of such SPC to support the funding or maintenance an Event 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCDefault.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Manufactured Home Communities Inc)
Assignments and Participations. (a) Each L/C Lender may, upon notice to the Borrowers and the Agent and with the prior written consent of the Borrowerconsent, each LC Issuer and the Administrative Agent (which consents shall not to be unreasonably withheld or delayed), of the Agent and if demanded by the Borrower pursuant to Section 8.07(g) shall to Issuing Bank and, unless an Event of Default has occurred and is continuing, the extent required by such SectionBorrowers, assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances L/C Commitment and other amounts owing to it and its participation in Facility LCsit); provided that provided, however, that
(i) each such assignee shall have deposited in the Lender Cash Collateral Account of such assignee an amount equal to 102% of any L/C Commitment assigned to it; (ii) [reserved], (iii) [reserved], (iv) except in the case of an assignment shall be to a Person that, immediately prior to such assignment, was an L/C Lender, an Affiliate of a constant, and not a varying, percentage an L/C Lender or an Approved Fund or an assignment of all of the assigning an L/C Lender’s rights and obligations under this Agreement, (ii) the amount of the L/C Commitment Amount of the assigning L/C Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or(unless an Event of Default has occurred and is continuing, if less, the entire amount of such Lender’s Commitment, and shall be in which case not less than $5,000,000) or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof unless the Agent and the Borrowers otherwise agree, (iiiv) each such assignment shall be to an Eligible Assignee, (ivvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with and the parties to such assignment (other than the Agent) shall deliver a processing and recordation fee of $3,500 (which except no such fee shall be payable by one for assignments to an L/C Lender, an Affiliate of an L/C Lender or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bankan Approved Fund), and (vvii) the consent any L/C Lender may assign all or a portion of the Borrower shall not be required after the occurrence its rights and during the continuance obligations to any of any Event of Defaultits Affiliates or to another L/C Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a an L/C Lender hereunder and (y) the L/C 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 (other than its rights under Section 2.12, 2.15 and 9.04 to the extent any claim thereunder relates to an event arising prior such assignment) 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 L/C Lender’s rights and obligations under this Agreement, such L/C Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) [Reserved].
(c) By executing and delivering an Assignment and Acceptance, the L/C 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 Acceptance, Section 5.02 hereof or in the Cash Collateral Agreement, such assigning L/C 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 other Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents or any other instrument or document furnished pursuant heretohereto or thereto; (ii) such assigning L/C Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower Loan Parties or the performance or observance by the Borrower Borrowers of any of its their obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e6.01(j) 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 Administrative Agent, such assigning L/C Lender or any other L/C 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 AgreementAgreement and the other Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a an L/C Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning L/C Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AA hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerBorrowers.
(e) The Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at its address referred to in Section 9.02 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 L/C Lenders and the L/C Commitment of, and principal amount (and stated interest) of the L/C Obligations owing to, each L/C Lender from time to time, and the account party, beneficiary, amount, expiration date, and other economic terms of each Letter of Credit issued hereunder (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the L/C Lenders may treat each Person whose name is recorded in the Register as an L/C Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(f) Each L/C Lender may may, without the consent of the Agent or any Loan Party, sell participations to one or more banks or other entities (each, a “Participant”other than Holdings or any of its Subsidiaries) in or to all or a portion of its rights and/or and obligations under this Agreement (including all or a portion of its L/C Commitment, the Advances owing to it and its participation in Facility LCs); provided provided, however, that (i) such L/C Lender’s obligations under this Agreement (including its L/C Commitment to the Borrowers and its obligations to the Issuing Bank hereunder) shall remain unchanged, (ii) such L/C Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) [reserved], (iv) the BorrowerBorrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such L/C Lender in connection with such L/C Lender’s rights and obligations under this Agreement Agreement, and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Loan Document, other than or consent to any departure by any Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect consent would require the affirmative vote of the L/C Lender from which it purchased its participation pursuant to Section 9.01(a). Each L/C Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the L/C Commitment, L/C Obligation or other obligations under the Loan Documents (the “Participant Register”); provided that no L/C Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any L/C Commitment, L/C Obligation or other obligations under the Loan Documents) to any Advance or Commitment in which Person except to the extent that such Participant has an interest disclosure is necessary to establish that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or L/C/ Commitment, postpones L/C Obligation or other obligation under the Loan Documents is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such L/C Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any date fixed notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancemaintaining a Participant Register.
(fg) Any L/C Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to Holdings, the Borrower Borrowers or their Subsidiaries furnished to such L/C Lender by or on behalf of the BorrowerBorrowers; provided 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 Borrower Information relating to Holdings, the Borrower Borrowers or their Subsidiaries received by it from such L/C Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period9.08.
(h) Notwithstanding anything to the contrary contained hereinany other provision set forth in this Agreement, any L/C Lender may at any time (i) create a “Granting Bank”security interest in all or any portion of its rights under this Agreement, including, without limitation, in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System and (ii) may grant assign to a one or more special purpose funding vehicle vehicles (each, an “SPCSPV”) all or any portion of its funded L/C Obligations (without the corresponding L/C Commitment), identified as without the consent of any Person or the payment of a fee, by execution of a written assignment agreement in a form agreed to by such L/C Lender and such SPV, and may grant any such SPV the option, in writing from time to time by the Granting Bank to the Administrative Agent and the Borrowersuch SPV’s sole discretion, the option to provide to the Borrower Borrowers all or any part of any Advance L/C Obligation that such Granting Bank L/C Lender would otherwise be obligated to make fund pursuant to this Agreement. Such SPVs shall have all the rights which a L/C Lender making or holding such L/C Obligations would have under this Agreement, but no obligations; provided provided, that no SPV shall be entitled to compensation pursuant to Section 2.12 or 2.15 in excess of that to which the applicable L/C Lender would otherwise have been entitled. The L/C Lender shall remain liable for all its original obligations under this Agreement, including its L/C Commitment (although the unused portion thereof shall be reduced by the principal amount of any L/C Obligations held by an SPV). Notwithstanding such assignment, the Agent and Borrowers may deliver notices to the L/C Lender (as agent for the SPV) and not separately to the SPV unless the Agent and Borrowers are requested in writing by the SPV (or its agent) to deliver such notices separately to it.
(i) nothing herein [Reserved].
(j) Neither Holdings nor any Borrower shall constitute a commitment by any SPC have the right to make any Advance, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all assign its rights hereunder or any part of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but interest herein without the prior written consent of, of the Borrower and the Administrative Agent and without paying any processing fee thereforeach of the Lenders (except, assign all or a portion in the case of its interests in any Advance SRAC, pursuant to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC6.01(d)).
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Sears Holdings Corp)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities Lenders all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances Loans owing to it and any Notes held by it) with the consent of the Borrower (unless an Event of Default shall have occurred and be continuing, in which case the consent of the Borrower shall not be required), each Issuing Bank, the Swingline Lender and the Administrative Agent, in each case, which consent shall not be unreasonably withheld or delayed, and, if demanded by the Borrower (pursuant to clause (c) below), upon at least five Business Days’ notice to such Lender and the Administrative Agent, shall assign to one or more Persons all or a portion of its participation in Facility LCsrights and obligations under this Agreement (including all or a portion of its Commitment, the Loans owing to it and any Notes held by it); provided that (i) each such assignment shall be of a constant, and not a varying, varying percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or in the case of an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Commitment Amount or Loan, as applicable, of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral or any whole multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof, (iii) each such assignment shall be to an Eligible AssigneeAssignee or an Affiliate of a Lender of the type described in clause (y) of the second proviso below, (iv) each such assignment made as a result of a demand by the Borrower shall comply with clause (c) below, (v) the parties to each such assignment (which shall not include the Borrower) shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 and (which vi) the assignee, if not already a Lender, shall be payable by one or more of the parties deliver to the Assignment Administrative Agent an Administrative Questionnaire; provided that the Borrower shall pay such processing and Acceptance, and not recordation fee if such assignment occurs as a result of a demand by the Borrower pursuant to Section 9.06(c)(i) or (except ii); provided further that no consents shall be required (x) in the case of an assignment of the type described in clause (g) below, or (y) in the case of an assignment of a demand under Section 8.07(g)), and shall not be payable Commitment by a Lender to an Affiliate of such Lender if the assignee long term deposit rating of such Affiliate is a Federal Reserve Bank), and (v) no less than the consent long term deposit rating of such Lender at the time of the Borrower shall not assignment, subject to reassignment by such Affiliate to such Lender if at any time it ceases to be required after the occurrence an Affiliate of such Lender and during the continuance prior notification of any Event of Defaultsuch assignment to the Borrower. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender hereto) but shall continue to be entitled to indemnification pursuant to the benefits of Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary2.16, (A) the consent of the Borrower, the LC Issuers 2.18 and the Administrative Agent shall not be required 9.04 with respect to any assignment by any Lender facts and circumstances occurring prior to an Affiliate the effective date of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunderassignment.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, such assigning Lender (A) 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 or any other instrument or document furnished pursuant hereto, other than the representation and warranty that it owns the interest being assigned, free and clear of any liens or encumbrances, and has taken all action necessary to consummate the transactions pursuant to such Assignment and Acceptance; and (iiB) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition position of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; and (iiiii) such assignee (A) represents and warrants that it has taken all action necessary to consummate the transactions pursuant to such Assignment and Acceptance; (B) confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred delivered pursuant to in Section 4.01(eSections 5.01(a) or 5.01(b) (or, prior to the first such delivery, the Initial Financial Statements) 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; (ivC) such assignee agrees that it will, independently and without reliance upon the Administrative Agent, any Arranger, such assigning Lender or any other Lender 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; (vD) such assignee confirms that it is an Eligible Assignee; (viE) such assignee appoints and authorizes the Administrative Agent to take such action as administrative agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (viiF) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender. Anything herein to the contrary notwithstanding, the Borrower shall not be obligated to pay to any assignee any amounts under Section 2.16 or 2.18 in excess of the amount the Borrower would have been obligated to pay thereunder to the assigning Lender in the absence of such assignment, unless such assignment is made at a time when the circumstances giving rise to such greater payments did not exist.
(c) Following
(i) a demand by any Lender pursuant to, or the incurrence by the Borrower of an obligation to make a payment pursuant to, Section 2.16, 2.17 or 2.18, (ii) any Lender becoming a Defaulting Lender or (iii) in connection with any proposed amendment, modification, waiver or termination requiring the consent of all the Lenders or all affected Lenders, for which the consent of the Required Lenders has been obtained, the failure of any Lender whose consent is required but not obtained to vote in favor of such amendment, modification, waiver or termination, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.06(a)), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (w) the Borrower shall have received the prior written consent of each Issuing Bank, the Swingline Lender and the Administrative Agent, which consent shall not unreasonably be withheld or delayed, (x) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees (giving effect to Section 2.19 in the event such Lender is a Defaulting Lender) and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (y) in the case of any such assignment resulting from a claim or obligations under Section 2.16, 2.17 or 2.18, such assignment will result in a reduction in such compensation or payments and (z) no Default shall have occurred and be continuing. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A 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 Administrative Agent in exchange for the surrendered Note (which shall be marked “cancelled” by the assigning Lender) a new Note to such Eligible Assignee in an amount equal to the Commitment or Loan, as applicable, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment or Loan, as applicable, hereunder, a new Note to the assigning Lender in an amount equal to the Commitment or Loan, as applicable, retained by it hereunder. Such new Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(e) The Administrative Agent Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its address referred to in Section 8.02 9.02 a copy of each Assignment and Acceptance and each Assumption Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and the interest and principal amount of the Advances Loans owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(ef) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including all or a portion of its Commitment, the Advances Loans owing to it and its participation in Facility LCsany Notes held by it); provided provided, that (i) such Lender’s obligations under this Agreement (including its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Note, other than or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate extent subject to such participation, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation. Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register for the recordation of the names and addresses of each Participant and the Commitment of, and the interest and principal amount of the Loans owing to, each Participant from time to time (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or Commitment, extends any Commitment, releases portion of the Participant Register to any guarantor Person (including the identity of any such Advance Participant or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 a Participant’s interest in any Commitments, Loans or its other obligations hereunder or under any other Loan Document) except to the Borrower furnished extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender by or on behalf shall treat each Person whose name is recorded in the Participant Register as the owner of the Borrower; provided that, prior to such participation for all purposes of this Agreement notwithstanding any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating notice to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)contrary.
(g) If Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to including the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances Loans owing to it and its participation the Notes held by it) in the Facility LCs and all favor of its any Federal Reserve Bank or other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Governmental Authority in accordance with this Section 8.07 during any regulation of the Federal Reserve or other Governmental Authority. No such period.
(h) Notwithstanding anything to the contrary contained herein, assignment shall release any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCobligations hereunder.
Appears in 1 contract
Assignments and Participations. (a) Each Lender mayBank may and, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gsubsection (g) hereof, shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances and Special Rate Loans owing to it and its participation in Facility LCsit); provided that (i) each such assignment shall (except in the case of outstanding Auction Advances and Special Rate Loans) be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations of the Banks under this Agreement, (ii) the amount of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire lesser of (x) the amount set forth opposite the name of such Lender’s CommitmentBank on Schedule I to this Agreement or in the Assignment and Acceptance pursuant to which the assigning Bank became a Bank, and (y) $25,000,000, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment1,000,000, unless otherwise agreed by the Borrower and the Administrative Agent, (iii) each such assignment shall be to an Eligible Assignee, Assignee and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least three Business Days after the execution thereof, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender Bank hereunder and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning LenderBank’s rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto (although an assigning Lender hereto), provided that the obligations of the Borrower to the Bank assignor described in Sections 2.02(b), 2.11, 2.12, 2.15, 8.04 and 8.12 that arose prior to such assignment, and the obligations of the Bank assignor described in Sections 7.05 and 8.10 that arose prior to such assignment, shall continue survive the making of such assignment, notwithstanding that such Bank assignor may cease to be entitled to indemnification pursuant to Section 8.04(c))a “Bank” hereunder. Notwithstanding the foregoing, any Bank assigning its rights and obligations under this Agreement may retain any Auction Advances and any Special Rate Loans made by it outstanding at such time, and in such case shall retain its rights hereunder in respect of any Advances and Special Rate Loans so retained until such Advances and Special Rate Loans have been repaid in full in accordance with this Agreement. Notwithstanding anything to the contrary contained in this Section 8.07(aAgreement, any Bank (a “Granting Bank”) may grant to a special purpose vehicle (an “SPV”) affiliated with such Granting Bank (identified as such in writing from time to time by the contrary, (A) the consent of the Borrower, the LC Issuers and Granting Bank to the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or ) the Administrative Agent, and without any requirement option to have an Assignment and Acceptance executed, assign provide to the Borrower all or any part of its any Advances or Special Rate Loans that such Granting Bank would otherwise be obligated to make to the Borrower pursuant to Article II, provided that (i) nothing herein shall constitute a commitment by any SPV to make any Advances or Special Rate Loans, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Advances or Special Rate Loans, the Granting Bank shall be obligated to make such Advances or Special Rate Loans pursuant to the terms hereof automatically and without any action by any other Person and (iii) the Borrower may bring any proceeding against either the Granting Bank or the SPV in order to enforce any rights of the Borrower hereunder. The making of an Advance or Special Rate Loan by an SPV hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance or Special Rate Loan were made by the Granting Bank. Each party hereto hereby agrees that no SPV shall be liable for any payment under this Agreement for which a Bank would otherwise be liable, for so long as, and to the extent, the related Granting Bank makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against, or join any other Person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States or any State thereof arising out of any claim against such SPV under this Agreement. In addition, notwithstanding anything to the contrary contained in this Agreement (1) any SPV may with notice to (but without the prior written consent of) the Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any portion of its obligations hereunderinterests in any Advances or Special Rate Loans to its Granting Bank or to any financial institutions (consented to by the Borrower and the Administrative Agent) providing liquidity and/or credit support (if any) with respect to commercial paper issued by such SPV to fund such Advances or Special Rate Loans; and (2) such SPV may disclose, on a confidential basis, confidential information with respect to the Borrower and its Subsidiaries to any rating agency, commercial paper dealer or provider of a surety, guarantee or credit liquidity enhancement to such SPV. This paragraph may not be amended without the consent of each SPV at the time holding Advances or Special Rate Loans under this Agreement.
(b) By executing and delivering an Assignment and Acceptance, the Lender Bank 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 Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agent, such assigning Lender Bank or any other Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee, except for any required consent of the Borrower; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank.
(c) The Administrative Agent shall maintain at its first 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 Lenders Banks and the Commitment Amount of, and principal amount of the Advances owing to, each Lender Bank from time to time (the “Register”). The Subject to Section 2.14(f), the entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders Banks may treat each Person whose name is recorded in the Register as a Lender Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Bank and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AB hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and Register, (iii) give prompt notice thereof to the Borrower and (iv) send a copy thereof to the Borrower.
(e) Each Lender Bank may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances or Special Rate Loans owing to it and its participation in Facility LCsit); provided that (i) such LenderBank’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank’s rights and obligations under this Agreement and (iv) such Lender Bank shall retain not agree with any such bank or other financial institution to permit such bank or other financial institution to enforce the sole right obligations of the Borrower relating to approve, without the consent Advances or any Special Rate Loan or to approve of any Participant, any amendment, modification or waiver of any provision of this Agreement, Agreement (other than any such amendmentamendments, modification modifications or waiver waivers with respect to any Advance or Commitment decrease in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or any fees payable with hereunder or the amount of principal or rate of interest which is payable in respect to of such Advances or Special Rate Loan or any such Advance or Commitment, postpones any date extension of the dates fixed for any regularly scheduled the payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethereof).
(f) Any Lender Bank 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, participant any information relating to the Borrower furnished to such Lender Bank by or on behalf of the Borrower; provided 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 relating to the Borrower or this Agreement received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance Bank in accordance with legal process and other requirements of law)Section 8.10.
(g) If any Lender (i) Bank shall make demand for payment under or shall notify the Borrower that it is affected by an event described in Section 2.11(a), 2.11(b) 2.11 or 2.14, (ii) 2.15 hereunder or shall deliver any notice to notify the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders2.13 hereunder, then (in the case of clause (i)) within 60 15 days after such demand (if, but only if, or such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may benotice, the Borrower may (i) demand that such Lender Bank assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such LenderBank’s Commitment, Commitment and the Advances and Special Rate Loans owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If , provided that, if any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such LenderBank, or if the Borrower shall fail to designate any such Eligible Assignee Assignees for all or part of such LenderBank’s Commitment, Advances and participation in Facility LCsSpecial Rate Loans, then such Lender Bank may (but shall not be required to) assign such Commitment Commitment, Advances and Advances Special Rate Loans to any other Eligible Assignee in accordance with this Section 8.07 during such period30-day period or (ii) terminate all (but not less than all) of such Bank’s Commitment and repay all (but not less than all) of such Bank’s Advances and Special Rate Loans not so assigned on or before such 30th day in accordance with Sections 2.06 and 2.07(d) hereof (but without the requirements stated therein for ratable treatment of the Banks). Nothing in this Section 8.07(g) shall relieve the Borrower of its obligations for payment under Section 2.11 or 2.15 arising prior to an assignment or termination pursuant hereto.
(h) Notwithstanding anything to the contrary contained herein, Any Bank may at any Lender (a “Granting Bank”) may grant time assign all or any portion of its rights under this Agreement to a special purpose funding vehicle (an “SPC”)Federal Reserve Bank; provided that no such assignment shall release a Bank from any of its obligations hereunder. In connection with any such assignment or proposed assignment, identified as the Borrower will, promptly upon the request of any Bank, execute and deliver to such in writing from time to time by the Granting Bank to the Administrative Agent and a note evidencing the Borrower’s obligations hereunder, the option to provide in a form mutually satisfactory to the Borrower all or any part of any Advance that and such Granting Bank would otherwise be obligated to make pursuant to this Agreement; provided that Bank.
(i) nothing herein shall constitute This Section 8.07 sets forth the exclusive manner by which a commitment by Bank may assign its rights and obligations hereunder or sell participations in or to its rights and obligations hereunder.
(j) Each Bank agrees to notify the Borrower of any SPC to make assignment of or grant of a participating interest in any AdvanceAdvance or Special Rate Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment and of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance identity of the foregoing, each party hereto hereby agrees assignee or participant.
(which agreement shall survive the termination of this Agreementk) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper The Borrower may not assign or other senior indebtedness of delegate any SPC, it will not institute against, rights or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but obligations hereunder without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCeach Bank.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer Issuer, the Swingline Lenders and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) or (h) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment) shall in no event be less than $10,000,000 (unless each of the Borrower and the Administrative Agent otherwise consent) or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AcceptanceAssumption, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and AcceptanceAssumption, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultDefault under Section 6.01(a), Section 6.01(c)(i) (with respect to a breach of Section 5.02(c) only) or Section 6.01(e) and (vi) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and AcceptanceAssumption, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights and be released from its obligations under this Agreement and, in the case of an Assignment and Acceptance Assumption 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers Borrower and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved Fund and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer Issuer, any Swingline Lender or the Administrative Agent, and without any requirement to have an Assignment and Acceptance Assumption executed, assign all or any part of its rights under this Agreement to a Federal Reserve BankBank or other central banking authority, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, . For 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible AssigneeSection 8.07(a), the Administrative Agent shall, if such Assignment and Acceptance term “Approved Fund” has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.following meaning:
Appears in 1 contract
Assignments and Participations. (a) The Company may not assign any of its rights or obligations hereunder or under the Notes (if any) without the prior consent of all of the Banks and the Administrative Agent.
(b) Each Lender mayBank may assign any of its Loans, its Notes (if any), and its Commitment (but only with the prior written consent of the BorrowerCompany and the Administrative Agent, each LC Issuer of which consents will not be unreasonably withheld); provided that
(i) no such consent by the Company or the Administrative Agent shall be required in the case of any assignment to another Bank or an affiliate of a Bank;
(ii) except to the extent the Company and the Administrative Agent shall otherwise consent, any such partial assignment (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant other than to Section 8.07(ganother Bank) shall be in an amount at least equal to $5,000,000;
(iii) each such assignment by a Bank of its Loans, Note (if any) or Commitment shall be made in such manner so that the extent required by such Section, assign to one or more banks or other entities all or a same portion of its rights Loans, Note (if any) and obligations under this Agreement Commitment is assigned to the respective assignee;
(including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (iiv) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the effected by an Assignment and Acceptance with respect to such assignmentin the form of Exhibit G hereto; and
(v) shall in no event be less than $10,000,000 oreach assignee, if lessit shall not be a Bank, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a LenderQuestionnaire.
(c) The Administrative Agent Agent, acting for this purpose as an agent of the Company, shall maintain at one of its address referred to offices in Section 8.02 the City of New York a copy of each such Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders Banks, and the Commitment Amount of, and principal amount of the Advances Loans owing to, each Lender Bank pursuant to the terms hereof from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest errorconclusive, and the BorrowerCompany, the Administrative Agent and the Lenders Banks may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender Bank hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower or Company and any Lender Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment execution and Acceptance executed delivery by an assigning Lender the assignor and an the assignee representing that it is an Eligible Assignee, to the Company and the Administrative Agent shall, (if such Assignment and Acceptance has been completed and is in substantially the form applicable) of Exhibit A, (i) accept such Assignment and Acceptance, and upon consent thereto by the Company and the Administrative Agent to the extent required above and the delivery to the Administrative Agent of the assignee's completed Administrative Questionnaire (i) the assignee shall have, to the extent of such assignment (unless otherwise consented to by the Company and the Administrative Agent), the obligations, rights and benefits of a Bank hereunder holding the Commitment and Loans (or portions thereof) assigned to it and specified in such Assignment and Acceptance (in addition to the Commitment and Loans, if any, theretofore held by such assignee), (ii) the assigning Bank shall, to the extent of such assignment, be released from the Commitment (or portion thereof) so assigned and (iii) the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register and (iii) give prompt notice thereof to Register. Upon each such assignment the Borrowerassigning Bank shall pay the Administrative Agent an assignment fee of $3,000.
(e) Each Lender A Bank may sell participations or agree to sell to one or more banks or other entities Persons (each, each a “"Participant”") a participation in or to all or a portion any part of any Loans held by it, or in its Commitment, provided that such Participant shall not have any rights and/or or obligations under this Agreement or any Note (including all or a portion 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 favor of the Participant). All amounts payable by the Company to any Bank under Section 5 hereof in respect of Loans held by it, and its Commitment, the Advances owing shall be determined as if such Bank had not sold or agreed to it sell any participations in such Loans and its participation in Facility LCs); provided that (i) Commitment, and as if 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 Bank were funding each of such obligations, (iii) Loan and Commitment in the Borrower, same way that it is funding the Administrative Agent portion of such Loan and Commitment in which no participations have been sold. In no event shall a Bank that sells a participation agree with the other Lenders shall continue Participant to deal solely and directly take or refrain from taking any action hereunder except that such Bank may agree with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approveParticipant that it will not, without the consent of any the Participant, any amendment, modification agree to (i) increase or waiver extend the term of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Bank's Commitment, postpones any (ii) extend the date fixed for any regularly scheduled the payment of principal of, of or interest on the related Loan or fees onLoans or any portion of any fee hereunder payable to the Participant, any such Advance or Commitment, extends any Commitment, releases any guarantor (iii) reduce the amount of any such Advance payment of principal, (iv) reduce the rate at which interest is payable thereon, or releases any substantial portion fee hereunder payable to the Participant, to a level below the rate at which the Participant is entitled to receive such interest or fee or (v) consent to any modification, supplement or waiver hereof to the extent that the same, under Section 11.04 hereof, requires the consent of collateral, if any, securing any such Advanceeach Bank.
(f) Any Lender mayIn addition to the assignments and participations permitted under the foregoing provisions of this Section 11.06, in connection with any assignment Bank may (without notice to the Company, the Administrative Agent or participation any other Bank and without payment of any fee)
(i) assign and pledge all or proposed assignment or participation any portion of its Loans and its Notes (if any) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank and (ii) assign all or any portion of its rights under this Section 8.07, disclose Agreement and its Loans and its Notes (if any) to an affiliate. No such assignment to a Federal Reserve Bank shall release the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it assigning Bank from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)its obligations hereunder.
(g) If A Bank may furnish any Lender information concerning the Company or any of its Subsidiaries in the possession of such Bank from time to time to assignees and participants (i) shall make demand for payment under Section 2.11(aincluding prospective assignees and participants), 2.11(b) or 2.14subject, (ii) shall deliver any notice however, to the Administrative Agent pursuant to provisions of Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii11.12(b) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodhereof.
(h) Anything in this Section 11.06 to the contrary notwithstanding, no Bank may assign or participate any interest in any Loan held by it hereunder to the Company or any of its affiliates or Subsidiaries without the prior consent of each Bank.
(i) Notwithstanding anything to the contrary contained herein, any Lender Bank (a “"Granting Bank”") may grant to a special purpose funding vehicle (an “"SPC”)") of such Granting Bank, identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the BorrowerCompany, the option to provide to the Borrower all or any part of any Advance Loan that such Granting Bank would otherwise be obligated to make pursuant to this Agreement; make, provided that (i) nothing herein shall constitute a commitment by any SPC to make any AdvanceLoan by any SPC, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such AdvanceLoan, the Granting Bank shall be obligated to make such Advance Loan pursuant to the terms hereof, and (iii) the rights of any such SPC shall be derivative of the rights of the Granting Bank, and such SPC shall be subject to all of the restrictions upon the Granting Bank herein contained. Each SPC shall be conclusively presumed to have made arrangements with its Granting Bank for the exercise of voting and other rights hereunder in a manner which is acceptable to the SPC, the Administrative Agent, the Banks and the Company, and each of the Administrative Agent, the Banks and the Company shall be entitled to rely upon and deal solely with the Granting Bank with respect to Loans made by or through its SPC. The making of an Advance a Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance Loan were made by such the Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC SPC, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States or any State thereof, provided that the Granting Bank for each SPC hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage and expense arising out of their inability to institute any such proceeding against its SPC. In addition, notwithstanding anything to the contrary contained in this Section 8.0711.06(i), any SPC may (i) with notice to, but without the prior written consent of, of the Borrower Company and the Administrative Agent and (which consents shall not be unreasonably withheld) but without paying any processing fee therefor, assign all or a portion of its interests in any Advance Loans to the its Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) institutions providing liquidity and/or credit support facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the funding securities (if any) issued by such SPC to fund such Loans (but nothing contained herein shall be construed in derogation of the obligation of the Granting Bank to make Loans hereunder), provided that neither the consent of the SPC or maintenance of Advances any such assignee shall be required for amendments or waivers hereunder except for those amendments or waivers for which the consent of participants is required under Section 11.04, and (ii) disclose on a confidential basis (in the same manner described in Section 11.12) any non-public information relating to its Advances Loans to any rating agency, commercial paper dealer or provider of any a surety, guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 1 contract
Assignments and Participations. (a) Each Lender maymay sell, with the prior written consent of the Borrowertransfer, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld negotiate or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks other Lenders or other entities all or a portion of its rights and obligations under this Agreement (including Eligible Assignees all or a portion of its Commitment, including, without limitation, in the Advances case of an Issuer, its commitment to issue Letters of Credit and, in the case of each Lender, to participate in Letter of Credit Obligations and Swing Loans, the Loans and Letter of Credit Obligations owing to it and the Note held by it, if any, and a commensurate portion of its participation in Facility LCs)rights and obligations hereunder and under the other Loan Documents; provided that PROVIDED, HOWEVER, (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s 's rights and obligations under this Agreement, Agreement (ii) the Commitment Amount aggregate amount of the assigning Lender Commitments, Letters of Credit, Letter of Credit Obligations and Loans being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor's entire interest) be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 5,000,000 or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof, except, in either case, with the consent of the Borrower and the Agent, and (iii) each such assignment assignee hereunder shall also be to an Eligible Assignee, (iv) the . The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in recording, together with a $3,500 fee payable to the RegisterAgent for processing such assignment, an Assignment and Acceptance, together with a processing the Notes (or an Affidavit of Loss and recordation fee of $3,500 (which shall be payable by one or more of the parties Indemnity with respect to such Notes satisfactory to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)Agent), and shall not be payable if the assignee is a Federal Reserve Bank)any, and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Defaultsubject to such assignment. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, (xA) the assignee thereunder shall be become a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, and if such Lender was an Issuer, of an Issuer hereunder and thereunder, and (yB) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under this Agreement the Loan Documents (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreementthe Loan Documents, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any of the statements, warranties or representations made in or in connection with this Agreement or any other Loan Document furnished pursuant thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.,
Appears in 1 contract
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender maymay assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees (each, an “Assignee”), with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not be unreasonably withheld or delayed)) of:
(A) Borrowers; provided, that no consent of Borrowers shall be required (1) if an Event of Default pursuant to Sections 8.1, 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Borrowers shall be deemed to have consented to a proposed assignment unless they object thereto by written notice to Agent within five Business Days after having received notice thereof; and
(B) Agent, Swing Lender, and if demanded by Issuing Bank.
(ii) Assignments shall be subject to the Borrower pursuant following additional conditions:
(A) no assignment may be made to Section 8.07(g(1) a Disqualified Institution or (2) a natural person,
(B) no assignment may be made to a Loan Party, an Affiliate of a Loan Party, or any Sponsor Affiliated Entity,
(C) the amount of the Commitments and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent required by that the aggregate amount to be assigned to all such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement new Lenders is at least $5,000,000),
(including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (iD) each such partial assignment shall be made as an assignment of a constant, and not a varying, percentage proportionate part of all of the assigning Lender’s rights and obligations under this Agreement, ,
(ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (ivE) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, Agent an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent by such Lender and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing and recordation fee in the amount of $3,500 3,500, and
(which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (vG) the consent of assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from “Administrative Questionnaire”).
(b) From and after the effective date specified in each that Agent receives the executed Assignment and AcceptanceAcceptance and, if applicable, payment of the required processing fee, (xi) the assignee 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, shall be a “Lender” and shall have the rights and obligations of a Lender hereunder under the Loan Documents, and (yii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from its any future obligations under this Agreement and, (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 AgreementAgreement and the other Loan Documents, such Lender shall cease to be a party hereto (although an and thereto); provided, that nothing contained herein shall release any assigning Lender shall continue to be entitled to indemnification pursuant to from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 8.04(c15 and Section 17.9(a)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the assignee 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 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 or any other instrument or document Loan 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 any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; , (iii) such assignee Assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender 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 confirms that it is an Eligible Assignee; (vi) such assignee Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agent, by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; , and (viivi) such assignee 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.
(cd) The Administrative 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 Immediately upon Agent’s receipt of the names required processing fee, if applicable, and addresses delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Lenders Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment Amount ofallocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, its Commitment, and principal amount the other rights and interests of the Advances owing to, each that Lender from time to time (the “RegisterOriginating Lender”). The entries in ) hereunder and under the Register other Loan Documents; provided, that (i) the Originating Lender shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as remain a Lender hereunder “Lender” for all purposes of this Agreement. The Register shall be available for inspection by Agreement and the Borrower or any Lender at any reasonable time other Loan Documents and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneethe Participant receiving the participating interest in the Obligations, the Administrative Agent shallCommitments, if such Assignment and Acceptance has been completed the other rights and is in substantially interests of the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Originating Lender may sell participations to one or more banks or other entities (each, hereunder shall not constitute a “Participant”) in Lender” hereunder or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it other Loan Documents and its participation in Facility LCs); provided that (i) such the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) such the Originating Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the BorrowerBorrowers, the Administrative Agent Agent, and the other Lenders shall continue to deal solely and directly with such the Originating Lender in connection with such the Originating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv) such no Lender shall retain transfer or grant any participating interest under which the sole Participant has the right to approveapprove any amendment to, without the or any consent of any Participant, any amendment, modification or waiver of with respect to, this Agreement or any provision of this Agreementother Loan Document, other than any except to the extent such amendmentamendment to, modification or consent or waiver with respect to this Agreement or of any Advance or Commitment other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant has an is participating, (B) reduce the interest that forgives principalrate applicable to the Obligations hereunder 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 Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment Participant through such Lender (other than a waiver of principal ofdefault interest), or (E) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party, an Affiliate of a Loan Party, or any Sponsor Affiliated Entity, and (vii) all amounts payable by Borrowers 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 or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor 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 Advance Participant participates and no Participant shall have any rights under this Agreement or releases the other Loan Documents or any substantial portion direct rights as to the other Lenders, Agent, Borrowers, the Collateral, or otherwise in respect of collateral, if any, securing any such Advancethe Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) Any Lender may, in In connection with any such assignment or participation or proposed assignment or participation pursuant or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to this the provisions of Section 8.0717.9, disclose to the assignee all documents and information which it now or participant or proposed assignee or participant, any information hereafter may have relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process Loan Party and other requirements of law)its Subsidiaries and their respective businesses.
(g) If Any other provision in this Agreement notwithstanding, any Lender (i) shall make demand for payment may at any time create a security interest in, or pledge, all or any portion of its rights under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice and interest in this Agreement to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain secure obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign including any pledge in favor of any Federal Reserve Bank in accordance with this Section 8.07 to one Regulation A of the Federal Reserve Bank or more Eligible Assignees designated by the Borrower U.S. Treasury Regulation 31 CFR §203.24, and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s CommitmentFederal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, the Advances owing to it and its participation in the Facility LCs and all that no such pledge shall release such Lender from any of its other rights and obligations hereunder within the next succeeding 30 days. If or substitute any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, pledgee or if the Borrower shall fail to designate any such Eligible Assignee assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodas a party hereto.
(h) Notwithstanding anything Agent (as a non-fiduciary agent on behalf of Borrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of any Revolving Loan (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of a Revolving Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the contrary contained hereindesignated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolving Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register. This Section 13.1(h) shall be construed so that all Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC and any related regulations of the United States Treasury Department (or any other relevant or successor provisions of the IRC or of such United States Treasury Regulations).
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the “Granting BankParticipant Register”). A Registered Loan (and the registered note, if any, evidencing the same) may grant be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a special purpose funding vehicle Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (an “SPC”), identified in its capacity as such in writing Agent) shall have no responsibility for maintaining a Participant Register.
(j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register to the extent it has one) available for review by Borrowers from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC Borrowers may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCreasonably request.
Appears in 1 contract
Sources: Credit Agreement (AerSale Corp)
Assignments and Participations. (a) Each This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and the Agent and each Lender mayand their respective successors and assigns; provided, with however, that no Loan Party may assign or transfer any of its rights hereunder without the prior written consent of the Borrower, each LC Issuer Agent and any such assignment without the Administrative Agent Agent's prior written consent shall be null and void.
(which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gb) shall to the extent required by such Section, Each Lender may assign to one or more banks other lenders or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitments and the Advances owing to it and its participation in Facility LCsLoans made by it); provided provided, however, that (i) each such assignment is in an amount which is at least $1,000,000 or a multiple of $100,000 in excess thereof (or the remainder of such Lender's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (x) an Affiliate of such Lender or a Related Fund of such Lender or (y) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $1,000,000 or a multiple of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement$100,000 in excess thereof), (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Registeracceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Agent a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower 5,000 (except in the case payment of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower such fee shall not be required after in connection with an assignment by a Lender to an Affiliate of such Lender or Related Fund of such Lender) and (iii) any such assignment shall be made with the occurrence and during written consent of the continuance of any Event of DefaultAgent. Upon such execution, delivery, acceptance delivery and recordingacceptance, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least three Business Days after the delivery thereof to the Agent (xor such shorter period as shall be agreed to by the Agent and the parties to such assignment), (A) the assignee thereunder shall be become a party hereto "Lender" hereunder and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder Acceptance and (yB) the assigning 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the assigning 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 Acceptance, such the 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 Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or any of its Subsidiaries or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agentassigning Lender, such assigning Lender the Agent 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 AgreementAgreement and the other Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) 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 Loan Documents as are delegated to the Administrative Agent by the terms hereofhereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (viivi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(cd) The Administrative Agent shall maintain shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at its address referred to in Section 8.02 the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Commitment Amount Commitments of, and principal amount of the Advances Loans (the "Registered Loans") owing to, to each Lender from time to time (time. Other than in connection with an assignment by a Lender to an Affiliate of such Lender or a Related Fund of such Lender, the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent and the Lenders may shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower or and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneeassignee, together with any promissory notes subject to such assignment, the Administrative Agent shall, if the Agent consents to such assignment and if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, Acceptance and (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerRegister.
(ef) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agent shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary.
(g) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(h) Any foreign Person who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.08(d).
(i) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender's obligations under this Agreement (including all or a portion of without limitation, its Commitment, Commitments hereunder) and the Advances owing to it and its participation in Facility LCs); provided that (i) such Lender’s obligations under this Agreement other Loan Documents shall remain unchanged, ; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) and the BorrowerBorrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents; and (iviii) a participant shall not be entitled to require such Lender shall retain to take or omit to take any action hereunder except (A) action directly effecting an extension of the sole right to approvematurity dates or decrease in the principal amount of the Loans, without (B) action directly effecting an extension of the consent due dates or a decrease in the rate of any Participant, any amendment, modification interest payable on the Loans or waiver of any provision of the fees payable under this Agreement, other than or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any such amendment, modification or waiver Loan Party. The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.08 of this Agreement with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in any portion of the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent Commitments and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute Loans as if it was 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCLender.
Appears in 1 contract
Sources: Financing Agreement (Enherent Corp)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks Lenders or other entities Affiliates of Lenders all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances Loans owing to it and any Notes held by it) and may, with the consent of the Borrower (unless an Event of Default shall have occurred and be continuing, in which case the consent of the Borrower shall not be required) and the Administrative Agent, in each case, which consent shall not be unreasonably withheld or delayed, and, if demanded by the Borrower (pursuant to clause (c) below), upon at least five Business Days' notice to such Lender and the Administrative Agent, shall, assign to one or more Persons all or a portion of its participation in Facility LCsrights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and any Notes held by it); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or in the case of an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Commitment Amount or Loan, as applicable, of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral or any whole multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower shall comply with clause (c) below, (v) the parties to each such assignment (which shall not include the Borrower) shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note subject to such assignment and, if the Eligible Assignee was not a Lender or an Affiliate of a Lender immediately prior to such assignment, a processing and recordation fee of $3,500 and (which vi) the assignee, if not already a Lender, shall be payable by one or more of the parties deliver to the Assignment and Acceptance, and not Administrative Agent an Administrative Questionnaire; provided that the Borrower shall pay such fee if such assignment occurs as a result of a demand by the Borrower pursuant to Section 10.06(c)(i) or (except iii); provided further that neither the Borrower's nor the Administrative Agent's consent shall be required (x) in the case of an assignment of the type described in subsection (h) below, (y) in the case of an assignment of a demand under Section 8.07(g)), and shall not be payable Commitment by a Lender to an Affiliate of such Lender if the assignee long term deposit rating of such Affiliate is no less than the long term deposit rating of such Lender at the time of the assignment, subject to reassignment by such Affiliate to such Lender if at any time it ceases to be an Affiliate of such Lender and prior notification of any such assignment to the Borrower, or (z) in the case of an assignment by a Federal Reserve Bank)Lender to an Approved Fund subject to prior notification of such an assignment to the Borrower and the Administrative Agent. Notwithstanding the foregoing, until the earlier of (1) the date that the syndication of the Commitments and Loans is terminated (as determined by the Joint Lead Arrangers) and (v2) the date that is 90 days after the Funding Date, no assignments or other transfers will be permitted (other than by the Joint Lead Arrangers or their Affiliates) without the prior written consent of the Joint Lead Arrangers (provided that during such period the consent of the Borrower shall not be required after required), except that any Lender may assign its Loans or Commitments to any Affiliate of such Lender with written consent of the occurrence and during the continuance of any Event of DefaultAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender hereto) but shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrarybenefits of Sections 2.14, (A) the consent of the Borrower, the LC Issuers 2.16 and the Administrative Agent shall not be required 10.04 with respect to any assignment by any Lender facts and circumstances occurring prior to an Affiliate the effective date of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunderassignment.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 Guarantor or the performance or observance by the Borrower or any Guarantor of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 4.04 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender. Anything herein to the contrary notwithstanding, the Borrower shall not be obligated to pay to any assignee any amounts under Sections 2.14 or 2.16 in excess of the amount the Borrower would have been obligated to pay thereunder to the assigning Lender in the absence of such assignment, unless such assignment is made at a time when the circumstances giving rise to such greater payments did not exist.
(c) Following
(i) a demand by any Lender pursuant to, or the incurrence by the Borrower of an obligation to make a payment pursuant to, Section 2.14, 2.15 or 2.16, (ii) any Lender becoming a Defaulting Lender or (iii) in connection with any proposed amendment, modification, waiver or termination requiring the consent of all the Lenders or all affected Lenders, for which the consent of the Required Lenders has been obtained, the failure of any Lender whose consent is required but not obtained to vote in favor of such amendment, modification, waiver or termination, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 10.06(a)), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (w) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (x) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees (other than fees accrued pursuant to Section 2.05(a) in the event such Lender is a Defaulting Lender) and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (y) in the case of any such assignment resulting from a claim or obligations under Sections 2.14, 2.15 or 2.16, such assignment will result in a reduction in such compensation or payments and (z) no Default shall have occurred and be continuing. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Notes subject to such assignment, the Administrative 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 Administrative Agent in exchange for the surrendered Note (which shall be marked "cancelled" by the assigning Lender) a new Note to the order of such Eligible Assignee in an amount equal to the Commitment or Loan, as applicable, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment or Loan, as applicable, hereunder, a new Note to the order of the assigning Lender in an amount equal to the Commitment or Loan, as applicable, retained by it hereunder. Such new Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
(e) The Administrative Agent Agent, acting solely for this purpose as the agent of the Borrower, shall maintain at its address referred to in Section 8.02 10.02 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 Lenders and the Commitment Amount of, and principal amount and interest of the Advances Loans owing to, each Lender from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(ef) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances Loans owing to it and its participation in Facility LCsthe Notes held by it); provided that (i) such Lender’s 's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Note, other than or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate extent subject to such participation, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation. Notwithstanding the foregoing, until the earlier of (1) the date that the syndication of the Commitments and Loans is terminated (as determined by the Joint Lead Arrangers) and (2) the date that is 90 days after the Funding Date, no participations or Commitmentother transfers will be permitted (other than by the Joint Lead Arrangers) without the prior written consent of the Joint Lead Arrangers, extends except that any Commitment, releases Lender may sell participations in or to its Loans or Commitments to any guarantor Affiliate of any such Advance or releases any substantial portion Lender with written consent of collateral, if any, securing any such Advancethe Administrative Agent.
(fg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.0710.06, disclose to the assignee or participant or proposed assignee or participantparticipant the existence of (and facts and information related to) an Event of Default or any publicly available information concerning the Borrower, any information relating to Subsidiary or the Borrower furnished to Acquired Business in the possession of such Lender by or on behalf of the Borrowerfrom time to time; provided that, prior to any such disclosuredisclosure of the existence of (and facts and information related to) an Event of Default, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential the existence of (and facts and information relating to related to) such Event of Default, which agreement shall be on the Borrower received same terms as those set forth in Section 10.11. The disclosure permitted by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (ithis Section 10.06(g) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting be in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances addition to any other Eligible Assignee in accordance with this disclosure permitted by Section 8.07 during such period10.11.
(h) Notwithstanding anything to the contrary contained hereinany other provision set forth in this Agreement, any Lender (may at any time create a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such security interest in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part portion of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation its rights under this Agreement (all liability for which shall remain including, without limitation, the Loans owing to it and the Notes held by it) in favor of any Federal Reserve Bank or other Governmental Authority in accordance with the Granting Bank). In furtherance any regulation of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper Federal Reserve or other senior indebtedness of Governmental Authority. No such assignment shall release any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of Lender from its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCobligations hereunder.
Appears in 1 contract
Sources: 364 Day Bridge Term Loan Credit Agreement (Pfizer Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, Party may assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement (including (y) all or a portion of its Revolving Commitment, the Revolving Advances owing to it it, L/C Credit Extensions and the Revolving Note or Revolving Notes held by it, and/or (z) all or a portion of its participation in Facility LCsTerm Commitment, the Term Advances owing to it, and the Term Note or Term Notes held by it), including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided provided, however, that (i) each except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender Party, an Affiliate of any Lender Party or an Approved Fund or an assignment shall be of a constant, and not a varying, percentage of all of the assigning Lendera Lender Party’s rights and obligations under this Agreement, the aggregate amount of (iiA) the any Term Commitment Amount of the assigning Lender or Term Advance being assigned to such Person pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, 5,000,000 (or such lesser amount as shall be approved by the entire amount of such Lender’s Commitment, Administrative Agent) and shall be an integral multiple in increments of $1,000,000 in excess thereof, or (B) any Revolving Commitment or Revolving Commitment being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such Lender’s entire Commitmentlesser amount as shall be approved by the Administrative Agent) and shall be in increments of $1,000,000 in excess thereof, (iiiii) each such assignment shall be to an Eligible Assignee; provided that the Issuing Bank shall have sole discretion to consent to such Person being an Eligible Assignee, (iii) (A) with respect to any Term Commitment or any Term Advance, no such assignments shall be permitted without the consent of the Administrative Agent (such consent not to be unreasonably withheld) and, so long as no Default has occurred and is continuing, the consent of the Borrower (such consent not to be unreasonably withheld), except assignments to any other Lender Party, an Affiliate of any Lender, an Approved Fund or to any Federal Reserve Bank, and (B) with respect to any Revolving Commitment, Revolving Advance, L/C Credit Extension or L/C Borrowing, no such assignments shall be permitted without the consent of any Issuing Bank acting in its sole discretion, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, so long as no Default has occurred and is continuing, the consent of the Borrower (such consent not to be unreasonably withheld), except, with respect to the Borrower’s consent only, assignments to any other Lender Party, an Affiliate of any Lender, any Approved Fund or to any Federal Reserve Bank, and (iv) the parties to each such assignment shall execute and deliver to the Administrative 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 processing and recordation fee of $3,500; provided that only one such fee shall be payable in the case of contemporaneous assignments to or by two or more Approved Funds and (v) with respect to Revolving Commitment or Revolving Advance, each such assignment thereof shall be made on a pro rata basis with respect to each of (A) such Revolving Lender’s Revolving Advances and L/C Credit Extensions and (B) such Revolving Lender’s Revolving Commitment.
(b) Any Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of any Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 3,500.
(which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (vc) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, (xi) 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 or Issuing Bank, as the case may be, hereunder and (yii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.11, 2.13 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bd) By executing and delivering an Assignment and Acceptance, the each Lender Party assignor thereunder and the each assignee thereunder confirm to and agree with each other and the other parties thereto and 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 statements, warranties or representations made in or in connection with this Agreement any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (iii) such assignee confirms that it has received a copy of this AgreementAgreement and each other Loan Document, together with copies of the financial statements referred to in Section 4.01(eSections 3.01(a)(vi), 4.01(f), 5.03(b) and 5.03(c) 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 Administrative 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 AgreementAgreement or any other Loan Document; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement and the other Loan Documents are required to be performed by it as a LenderLender or Issuing Bank, as the case may be.
(ce) The Administrative 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 Lenders Lender Parties and the Commitment Amount Commitments of, and principal amount of the Advances and L/C Borrowings owing to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(df) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee representing that it is an Eligible Assigneeassignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative 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 Revolving Commitment or Term Commitment, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Revolving Commitment or Term Commitment, as the case may be, hereunder, a new Note to the order of such assigning Lender in an amount equal to the Revolving Commitment or Term Commitment, as the case may be, 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.
(eg) Each Lender Party may sell participations to one or more banks Persons (other than the Borrower or other entities (each, a “Participant”any Affiliate of the Borrower) in or to all or a portion of its rights and/or and obligations under this Agreement (including (i) all or a portion of its Revolving Commitment, the Revolving Advances owing to it it, L/C Credit Extensions and the Revolving Note or Revolving Notes (if any) held by it, and/or (ii) all or a portion of its participation in Facility LCsTerm Commitment, the Term Advances owing to it, and the Term Note or Term Notes (if any) held by it); provided provided, however, that (i) such LenderLender Party’s obligations under this Agreement (including its Revolving Commitment and L/C Credit Extensions or Term Commitment, as the case may be) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative 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 have any right to 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 amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.
(h) Notwithstanding anything in this Agreement to the contrary (including any other provision regarding assignments, participations, transfers or novations), any Lender (a “Granting Lender”) may, without the consent of any other party hereto, grant to a special purpose vehicle (whether a corporation, partnership, limited liability company, trust or otherwise, an “SPV”) sponsored or managed by the Granting Lender or any Affiliate thereof, a participation in all or any part of any Advance (including the Commitment therefor) that such Granting Lender has made or will make pursuant to this Agreement; provided that (i) such Granting Lender’s obligations under this Agreement (including its Commitment) shall remain unchanged; (ii) such Granting Lender shall remain the holder of its Note for all purposes under this Agreement; and (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Granting Lender in connection with such Granting Lender’s rights and obligations under the Loan Documents. Each party hereto hereby agrees that (A) no SPV will be entitled to any rights or benefits that a Lender would not otherwise be entitled to under this Agreement or any other Loan Document; and (ivB) such an SPV may assign its interest in any Advance under this Agreement to any Person that would constitute a Lender shall retain subject to the sole right satisfaction of all requirements for an assignment by any Lender set forth in this Section 8.07. Notwithstanding anything in this Agreement to approvethe contrary, the Granting Lender and any SPV may, without the consent of any Participant, any amendment, modification or waiver of any provision of other party to this Agreement, and without limiting any other than rights of disclosure of the Granting Lender under this Agreement, disclose on a confidential basis any such amendmentnon-public information relating to its funding of its Advances to (1) (in the case of the Granting Lender) any actual or prospective SPV, modification (2) (in the case of an SPV) its lenders, sureties, reinsurers, guarantors or waiver with respect to credit liquidity enhancers, (3) their respective directors, officers, and advisors, and (4) any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancerating agency.
(fi) 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, participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided 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 relating to the Borrower Confidential Information received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Party.
(gj) If Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, including the Advances owing to it and its participation in the Facility LCs and all of its other rights and Note or Notes held by it) to secure the obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s CommitmentLender Party, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances including any pledge or assignment to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant secure obligations to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make pursuant to this AgreementFederal Reserve Bank; provided that (i) nothing herein no such pledge or assignment shall constitute a commitment by release such Lender Party from 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in obligations hereunder or substitute any Advance to the Granting Bank such pledgee or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or assignee for the account of such SPC to support the funding or maintenance of Advances and (ii) disclose on Lender Party as 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCparty hereto.
Appears in 1 contract
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender maymay assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not be unreasonably withheld or delayed)) of:
(A) Borrowers; provided, that no consent of Borrowers shall be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Borrowers shall be deemed to have consented to a proposed assignment unless they object thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) Agent, Swing Lender, and if demanded by Issuing Bank.
(ii) Assignments shall be subject to the Borrower pursuant following additional conditions:
(A) no assignment may be made (i) so long as no Event of Default has occurred and is continuing, to Section 8.07(gCompetitor, or (ii) to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party,
(C) the amount of the Commitments and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent required by that the aggregate amount to be assigned to all such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement new Lenders is at least $5,000,000),
(including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (iD) each such partial assignment shall be made as an assignment of a constant, and not a varying, percentage proportionate part of all of the assigning Lender’s rights and obligations under this Agreement, ,
(ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (ivE) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, Agent an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent by such Lender and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing and recordation fee in the amount of $3,500 3,500, and
(which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (vG) the consent of assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from “Administrative Questionnaire”).
(b) From and after the effective date specified in each that Agent receives the executed Assignment and AcceptanceAcceptance and, if applicable, payment of the required processing fee, (xi) the assignee 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, shall be a “Lender” and shall have the rights and obligations of a Lender hereunder under the Loan Documents, and (yii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from its any future obligations under this Agreement and, (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 AgreementAgreement and the other Loan Documents, such Lender shall cease to be a party hereto (although an and thereto); provided, that nothing contained herein shall release any assigning Lender shall continue to be entitled to indemnification pursuant to from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 8.04(c15 and Section 17.9(a)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the assignee 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 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 or any other instrument or document Loan 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 any Borrower or the performance or observance by the any Borrower of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; , (iii) such assignee Assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender 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 confirms that it is an Eligible Assignee; (vi) such assignee Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agent, by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; , and (viivi) such assignee 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.
(cd) The Administrative 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 Immediately upon Agent’s receipt of the names required processing fee, if applicable, and addresses delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Lenders Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment Amount ofallocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, its Commitment, and principal amount the other rights and interests of the Advances owing to, each that Lender from time to time (the “RegisterOriginating Lender”). The entries in ) hereunder and under the Register other Loan Documents; provided, that (i) the Originating Lender shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as remain a Lender hereunder “Lender” for all purposes of this Agreement. The Register shall be available for inspection by Agreement and the Borrower or any Lender at any reasonable time other Loan Documents and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneethe Participant receiving the participating interest in the Obligations, the Administrative Agent shallCommitments, if such Assignment and Acceptance has been completed the other rights and is in substantially interests of the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Originating Lender may sell participations to one or more banks or other entities (each, hereunder shall not constitute a “Participant”) in Lender” hereunder or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it other Loan Documents and its participation in Facility LCs); provided that (i) such the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) such the Originating Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the BorrowerBorrowers, the Administrative Agent Agent, and the other Lenders shall continue to deal solely and directly with such the Originating Lender in connection with such the Originating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv) such no Lender shall retain transfer or grant any participating interest under which the sole Participant has the right to approveapprove any amendment to, without the or any consent of any Participant, any amendment, modification or waiver of with respect to, this Agreement or any provision of this Agreementother Loan Document, other than any except to the extent such amendmentamendment to, modification or consent or waiver with respect to this Agreement or of any Advance or Commitment other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant has an is participating, (B) reduce the interest that forgives principalrate applicable to the Obligations hereunder 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 Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment Participant through such Lender (other than a waiver of principal ofdefault interest), or (E) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party, or an Affiliate of a Loan Party, and (vii) all amounts payable by Borrowers 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 or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor 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 Advance Participant participates and no Participant shall have any rights under this Agreement or releases the other Loan Documents or any substantial portion direct rights as to the other Lenders, Agent, Borrowers, the Collateral, or otherwise in respect of collateral, if any, securing any such Advancethe Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) Any Lender may, in In connection with any such assignment or participation or proposed assignment or participation pursuant or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to this the provisions of Section 8.0717.9, disclose to the assignee all documents and information which it now or participant or proposed assignee or participant, any information hereafter may have relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process Parent and other requirements of law)its Subsidiaries and their respective businesses.
(g) If Any other provision in this Agreement notwithstanding, any Lender (i) shall make demand for payment may at any time create a security interest in, or pledge, all or any portion of its rights under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver and interest in this Agreement in favor of any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign Federal Reserve Bank in accordance with this Section 8.07 to one Regulation A of the Federal Reserve Bank or more Eligible Assignees designated by the Borrower U.S. Treasury Regulation 31 CFR §203.24, and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation Federal Reserve Bank may enforce such pledge or security interest in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodmanner permitted under applicable law.
(h) Notwithstanding anything Agent (as a non-fiduciary agent on behalf of Borrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of of a Revolver Commitment (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolver Commitments to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the contrary contained hereindesignated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolver Commitment to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the “Granting BankParticipant Register”). A Registered Loan (and the Registered Note, if any, evidencing the same) may grant to be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(j) Agent shall make a special purpose funding vehicle copy of the Register (an “SPC”), identified as such and each Lender shall make a copy of its Participant Register in writing the extent it has one) available for review by Borrowers from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC Borrowers may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCreasonably request.
Appears in 1 contract
Sources: Credit Agreement (Power Solutions International, Inc.)
Assignments and Participations. (a) Each Lender may, with The Borrower may not assign any of its rights or obligations hereunder without the prior written consent of all of the Borrower, each LC Issuer Lenders and the Administrative Agent Agent.
(b) Each Lender may assign its Loans or any portion thereof; provided, that:
(i) any such partial assignment (other than to another Lender) shall be in an amount at least equal to $5,000,000 or an integral multiple of $1,000,000 in excess thereof;
(ii) each such assignment shall be effected by an agreement in substantially the form of Exhibit G hereto;
(iii) each such assignee shall be an Eligible Assignee; and
(iv) each such assignment (other than to another Lender or an Affiliate of any Lender) shall be subject to the Borrower’s prior approval (which consents shall not be unreasonably withheld or delayed, it being understood and agreed that if the Borrower shall not respond to any request for its approval under this clause (iv) within three (3) Business Days after the Borrower’s receipt of such request, such approval shall be deemed granted by the Borrower), unless at the time of such assignment a Default shall have occurred and if demanded be continuing. Upon execution and delivery by the assignor and the assignee to the Borrower pursuant to Section 8.07(g) shall and the Administrative Agent of such Notice of Assignment, and upon consent thereto to the extent required by above and recording of the same in the Register in accordance with Section 11.06(c) hereof, the assignee shall have, to the extent of such Sectionassignment, assign to one or more banks or other entities all or a portion of its the obligations, rights and obligations under this Agreement benefits of a Lender hereunder holding the Loan (including all or a portion of its Commitment, the Advances owing thereof) assigned to it and its participation specified in Facility LCs); provided that such Notice of Assignment (iin addition to the Loan, if any, theretofore held by such assignee) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant shall, to each such assignment (determined as the extent of the date of the Assignment and Acceptance with respect to such assignment, be released from any obligations hereunder or under the other Loan Documents in connection with the Loan (or portion thereof) shall in no event be less than $10,000,000 or, so assigned (and if less, so requested by the entire amount of such Lender’s Commitment, assignor and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute assignee the Borrower will issue and deliver to the Administrative Agent, for assignor and the assignee new Notes reflecting such assignment). Upon its acceptance receipt of a Notice of Assignment executed by an assigning Lender and recording in the Register, an Assignment and Acceptance, assignee together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any a Lender to an Affiliate of such Lender or to another Lender and (BLender) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and payment by 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 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by of an assignment fee of $5,000, the terms hereof, together with Administrative Agent shall (i) promptly accept such powers as are reasonably incidental thereto; Notice of Assignment and (viiii) such assignee agrees that it will perform on the effective date determined pursuant thereto record the information contained therein in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it Register (as a Lenderhereinafter defined).
(c) The Borrower hereby designates the Administrative Agent shall maintain to serve as its agent, solely for purposes of this Section 11.06(c), to maintain, at its the address of the Administrative Agent referred to in Section 8.02 11.02(a) hereof, a copy of each Notice of Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount amounts of the Advances Loans owing to, to each Lender from time to time (time. Failure to make any such recordation, or any error in such recordation, shall not affect the “Register”)Borrower’s obligations in respect of such Loans. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent may deem and the Lenders may treat each Person whose name is recorded in the Register as the owner of a Lender Loan or other obligations hereunder as the owner thereof for all purposes of this Agreement, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder 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 Borrower, the Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. The Borrower agrees to indemnify the Administrative Agent from and against any and all claims, damages, losses, liabilities, obligations, penalties, actions, judgments, suits, and reasonable and documented costs and expenses (including, without limitation, the reasonable and documented fees and disbursements of counsel), that may be incurred by or asserted or awarded against the Administrative Agent in performing its duties under this Section 11.06(c).
(d) Upon its receipt A Lender may, in accordance with applicable Requirement of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible AssigneeLaw, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof sell or agree to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities Persons (each, a “Participant”) a participation in or to all or a portion any part of the Loan held by it, or in its Commitment, provided, that such Participant shall not have any rights and/or or obligations under this Agreement (including all or a portion the Participant's rights against such Lender in respect of such participation to be those set forth in the agreements executed by such Lender in favor of the Participant). All amounts payable by the Borrower to any Lender under Section 5 hereof in respect of the Loan held by it, and its Commitment, shall be determined as if such Lender had not sold or agreed to sell any participations in its Loan and Commitment, and as if such Lender were funding its Loan and Commitment in the Advances owing same way that it is funding the portion of such Loan and Commitment in which no participations have been sold. In no event shall a Lender that sells a participation agree with the Participant to take or refrain from taking any action hereunder except that such Lender may agree with the Participant that it and its participation in Facility LCs); provided that will not, without the consent of the Participant, agree to (i) increase or extend the term of such Lender’s obligations under this Agreement shall remain unchanged's Commitment, (ii) such Lender shall remain solely responsible extend the date fixed for the payment of principal of or interest on the related Loan or any portion of any fee hereunder payable to the other parties hereto for the performance of such obligationsParticipant, (iii) reduce the amount of any such payment of principal, or (iv) reduce the rate at which interest is payable thereon to a level below the rate at which the Participant is entitled to receive such interest.
(e) In addition to the assignments and participations permitted under the foregoing provisions of this Section 11.06, any Lender may (without notice to or consent of the Borrower, the Administrative Agent or any other Lender and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent payment of any Participant, fee) assign and pledge all or any amendment, modification or waiver portion of any provision of this Agreement, other than any such amendment, modification or waiver with respect its Loan and Note to any Advance or Commitment in which Federal Reserve Lender as security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Participant has an interest that forgives principal, interest or fees or reduces Federal Reserve Lender. No such assignment shall release the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advanceassigning Lender from its obligations hereunder.
(f) Any Subject to Section 11.19 hereof, a Lender 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, may furnish any information relating to concerning the Borrower furnished to obtained by such Lender by or on behalf of the Borrower; provided that, prior hereunder from time to any such disclosure, the assignee or participant or proposed assignee or participant shall agree time to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender assignees and participants (subject to customary exceptions regarding regulatory requirements, compliance with legal process including prospective assignees and other requirements of lawparticipants).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such LenderIf, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part result of any Advance that such Granting Bank would otherwise be obligated to make 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 assignment of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests the Loans of any Lender, or a change in any Advance to the Granting Bank or to any financial institution (consented to by such Lender’s Applicable Lending Office, the Borrower and Administrative Agent, which consents shall be unreasonably withheld required to make payments under Section 5 hereof greater than the payments that the Borrower would have been required to make under said Section if such assignment or delayedchange in Applicable Lending Office had not occurred, the Borrower shall not be obligated to make any such greater payments unless (i) providing liquidity and/or credit support to or for such greater payments result from a change in an applicable Requirement of Law occurring after the account date of such SPC to support the funding assignment or maintenance of Advances and change in Applicable Lending Office or (ii) disclose on a confidential basis any non-public information relating the Borrower consents in writing to its Advances make such greater payments at or prior to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent time of such Granting Bank assignment or SPCchange in Applicable Lending Office.
Appears in 1 contract
Sources: Senior Bridge Loan Agreement (Grupo Aval Acciones Y Valores S.A.)
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower (following a demand by such Lender pursuant to Section 8.07(g) shall to the extent required 2.10 or 2.13, or an assertion by such SectionLender of illegality under Section 2.11) upon at least five Business Days’ notice to such Lender and the Agent, will assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its applicable Revolving Credit Commitment, the Revolving Credit Advances owing to it and its participation in Facility LCsthe Revolving Credit Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the applicable Revolving Credit Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be or an integral multiple of $1,000,000 in excess thereof unless the Borrower and the Agent otherwise agree, provided that concurrent assignments to members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such Lender’s entire Commitmentminimum amount has been met, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.7(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.7(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Revolving Credit Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Revolving Credit Note subject to such assignment and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g))amount, and shall not be payable if the assignee is a Federal Reserve Bank)any, and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Defaultas set forth in Schedule 8.7. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (other than its rights under Sections 2.10, 2.13 and 8.4 to the extent any claim thereunder relates to an event arising prior such assignment) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 4.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Credit Note 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.
(d) The Administrative Agent shall maintain at its address referred to in Section 8.02 8.2 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 Lenders and the Commitment Amount Revolving Credit Commitments of, and principal amount of the Revolving Credit Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest demonstrable error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentRevolving Credit Commitments, the Revolving Credit Advances owing to it and its participation in Facility LCsany Revolving Credit Note held by it); provided provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Revolving Credit Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Revolving Credit Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Revolving Credit Note, other than or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Revolving Credit Advances or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate extent subject to such participation, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Revolving Credit Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advanceparticipation.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.078.7, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 Confidential Information relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Lender.
(g) If Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may bewithout limitation, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Revolving Credit Advances owing to it and its participation any Revolving Credit Note held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment Regulation A of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance Board of Governors of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCFederal Reserve System.
Appears in 1 contract
Sources: Credit Agreement (Radioshack Corp)
Assignments and Participations. (a) A. Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, Bank may assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion other than its rights in respect of its Commitment, the Advances owing to it and its participation in Facility LCsBid Loans); provided that (i) no assignment shall, without the consent of the -------- Borrower, require the Borrower to file a registration statement with the SEC or apply to qualify the Loans under the blue sky laws of any state, (ii) each such assignment by a Bank shall be of a constant, and not a varying, percentage of all of the assigning Lender’s Bank's rights and obligations under this AgreementAgreement with respect to the Loans (other than Bid Loans) and Commitments, (iiiii) the Commitment Amount amount of the Commitments or Loans of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall unless such assignment is to a Bank or an Affiliate of a Bank in no event be less than $10,000,000 or, if less, 5,000,000; provided that the entire -------- amount of the Commitment and the amount of the Loans of the assigning Bank being assigned may be in an amount equal to such Lender’s Commitment, assigning Bank's entire Commitments and shall be an integral multiple of $1,000,000 or such Lender’s Bank's entire Commitmentoutstanding Loans, (iiiiv) each such assignment shall be to an Eligible AssigneeAssignee and (except for an Eligible Assignee that is a Bank or an Affiliate of a Bank) shall be consented to in advance in writing by the Agent and the Borrower, and (ivv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee from the assignor of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default3,500. Upon such execution, delivery, acceptance and recording, from and after the later of the effective date specified in each Assignment and AcceptanceAcceptance and the date of acceptance thereof by the Agent, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender Bank hereunder and (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s Bank's rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)hereto). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender Any Bank may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign time pledge all or any part portion of its rights relating to the Loans made under this Agreement to a Federal Reserve Bank or an Affiliate of such Bank, ; provided that no such assignment pledge -------- shall release the transferor Lender such Bank from any of its obligations hereunder.
(b) B. By executing and delivering an Assignment and Acceptance, the Lender Bank 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 Bank assigns without recourse and 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 Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other Loan Document or any other instrument or document furnished pursuant heretohereto or 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(e) 4.3 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 Administrative Agent, such assigning Lender Bank or any other Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent the Agent, on its behalf and to exercise such powers under this Agreement as are delegated to the 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 of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank.
(c) C. The Administrative Agent shall maintain at its address referred to in Section 8.02 9.2 a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”)Banks. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders Banks may treat each Person whose name is recorded in the Register as a Lender Bank hereunder for all purposes of this Agreement. Failure to make recordation in the Register, or any error on such recordation, shall not affect the Borrower's obligations in respect of such Loans. The Register shall be available for inspection by the Borrower Borrower, the Agent or any Lender Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) D. Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Bank and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AEXHIBIT III annexed hereto, and subject to receipt of the written consent of the Borrower and the Agent, if required hereby, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) E. Each Lender Bank may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitments and the Advances Loans owing to it and its participation in Facility LCsit); provided provided, that (i) no participation shall, without -------- the consent of the Borrower, require the Borrower to file a registration statement with the SEC or apply to qualify the Loans under the blue sky laws of any state, (ii) such Lender’s Bank's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (iiiii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iiiiv) the Borrower, the Administrative Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such Lender’s Bank's rights and obligations under this Agreement Agreement, and (ivv) such Lender no Bank shall retain sell any participation under which the sole right participant shall have rights to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of this Agreement or any provision of this Agreement, other than any Loan Document except to the extent such amendment, modification amendment or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principalwould (a) extend the final scheduled maturity date of the Loans , interest or fees or reduces (b) reduce the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Loans or any such Advance fees or Commitmentother amounts payable hereunder, extends any Commitment, releases any guarantor or (c) increase the Commitment of any such Advance or releases any substantial portion of collateral, if any, securing any such Advanceparticipant.
(f) F. Any Lender Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.7, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender Bank by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Bank.
(g) If any Lender (i) shall make demand for payment under Section 2.11(a)G. Any Bank may, 2.11(b) or 2.14, (ii) shall deliver any by notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, request that all or part of the option principal amount of the Borrower's Obligations to provide such Bank in respect of the Commitments and/or Bid Loans hereunder be evidenced by a Committed Loan Note and/or Bid Loan Note, as applicable. Within three (3) Business Days of the Borrower's receipt of such request, the Borrower shall execute and deliver to the Borrower all applicable Bank a Note or Notes in the principal amount(s) specified in such request, payable to the requesting Bank or, if so specified in such request, any part Person who is an assignee of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC9.7.
Appears in 1 contract
Sources: Credit Agreement (Calmat Co)
Assignments and Participations. (ai) Each Subject to the conditions set forth in clause (a)(ii) below, any Lender maymay assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Bank Obligations owed to it and its Loans) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not be unreasonably withheld or delayed)) of:
(A) Borrower; provided, that no consent of Borrower shall be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) Agent, and if demanded by Issuing Lender.
(ii) Assignments shall be subject to the Borrower pursuant following additional conditions:
(A) no assignment may be made (i) so long as no Event of Default has occurred and is continuing, to Section 8.07(ga Competitor, or (ii) to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party,
(C) the amount of the Revolver Credit Limits and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent required by that the aggregate amount to be assigned to all such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement new Lenders is at least $5,000,000),
(including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (iD) each such partial assignment shall be made as an assignment of a constant, and not a varying, percentage proportionate part of all of the assigning Lender’s rights and obligations under this Agreement, ,
(ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (ivE) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, Agent an Assignment and Acceptance; provided, that Borrower and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing and recordation fee in the amount of $3,500 5,000, and
(which G) the assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the “Administrative Questionnaire”).
(H) Upon notice from Borrower, Agent and the Lenders shall at Borrower’s expense take such steps as may reasonably be payable requested by one Borrower to enable the Borrower or more any Subsidiary to comply with the Foreign Ownership Control or Influence requirements of the parties United States government imposed from time to the Assignment and Acceptance, and not by the Borrower time.
(except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (vb) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from From and after the effective date specified in each that Agent receives the executed Assignment and AcceptanceAcceptance and, if applicable, payment of the required processing fee, (xi) the assignee 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, shall be a “Lender” and shall have the rights and obligations of a Lender hereunder under the Loan Documents, and (yii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.03) and be released from its any future obligations under this Agreement and, (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 AgreementAgreement and the other Loan Documents, such Lender shall cease to be a party hereto (although an and thereto); provided, that nothing contained herein shall release any assigning Lender shall continue to be entitled to indemnification pursuant to from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 8.04(c15 and Section 17.09(a)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the assignee 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 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 or any other instrument or document Loan 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; , (iii) such assignee Assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender 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 confirms that it is an Eligible Assignee; (vi) such assignee Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agent, by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; , and (viivi) such assignee 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.
(cd) The Administrative 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 Immediately upon Agent’s receipt of the names required processing fee, if applicable, and addresses delivery of notice to the assigning Lender pursuant to Section 13.01(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Lenders Assignee and the Commitment Amount ofresulting adjustment of the Revolver Credit Limits arising therefrom. The Revolver Credit Limit allocated to each Assignee shall reduce such Revolver Credit Limits of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in all or any portion of its Bank Obligations, its Revolver Credit Limit, its Loans, and principal amount the other rights and interests of the Advances owing to, each that Lender from time to time (the “RegisterOriginating Lender”). The entries in ) hereunder and under the Register other Loan Documents; provided, that (i) the Originating Lender shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as remain a Lender hereunder “Lender” for all purposes of this Agreement. The Register shall be available for inspection by Agreement and the Borrower or any Lender at any reasonable time other Loan Documents and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneethe Participant receiving the participating interest in the Bank Obligations, the Administrative Agent shallRevolver Credit Limits, if such Assignment the Loans, and Acceptance has been completed the other rights and is in substantially interests of the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Originating Lender may sell participations to one or more banks or other entities (each, hereunder shall not constitute a “Participant”) in Lender” hereunder or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it other Loan Documents and its participation in Facility LCs); provided that (i) such the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) such the Originating Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative Agent Agent, and the other Lenders shall continue to deal solely and directly with such the Originating Lender in connection with such the Originating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv) such no Lender shall retain transfer or grant any participating interest under which the sole Participant has the right to approveapprove any amendment to, without the or any consent of any Participant, any amendment, modification or waiver of with respect to, this Agreement or any provision of this Agreementother Loan Document, other than any except to the extent such amendmentamendment to, modification or consent or waiver with respect to this Agreement or of any Advance or Commitment other Loan Document would (A) extend the final maturity date of the Bank Obligations hereunder in which such Participant has an is participating; provided that the foregoing shall not apply to the extension of the “Maturity Date” as defined, but only the due date for the particular Loan in which such Participant is participating, (B) reduce the interest that forgives principalrate applicable to the Bank Obligations hereunder 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 Bank Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or reduces (E) decreases the interest rate amount or fees postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party, or any Affiliate of a Loan Party or any Person whose participation would not comply with respect the National Industrial Security Program Operating Manual and associated laws and regulations, (vii) prior to a Default or Event of Default, no participation shall be sold to any Competitor of a Loan Party, and (viii) all amounts payable by Borrower hereunder shall be determined as if such Advance or CommitmentLender had not sold such participation, postpones any date fixed for any regularly scheduled payment of principal ofexcept 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 or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor 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 Advance Participant participates and no Participant shall have any rights under this Agreement or releases the other Loan Documents or any substantial portion direct rights as to the other Lenders, Agent, the Loan Parties, the Collateral, or otherwise in respect of collateral, if any, securing any such Advancethe Bank Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) Any Lender may, in In connection with any such assignment or participation or proposed assignment or participation pursuant or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to this the provisions of Section 8.0717.09, disclose to the assignee all documents and information which it now or participant or proposed assignee or participant, any information hereafter may have relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)its Subsidiaries and their respective businesses.
(g) If Any other provision in this Agreement notwithstanding, any Lender (i) shall make demand for payment may at any time create a security interest in, or pledge, all or any portion of its rights under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver and interest in this Agreement in favor of any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign Federal Reserve Bank in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment Regulation A of the Granting Federal Reserve Bank to the same extentor U.S. Treasury Regulation 31 CFR §203.24, and as if, such Advance were made by Federal Reserve Bank may enforce such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity pledge or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended security interest in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCpermitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) The Loan Documents shall be binding upon and inure to the benefit of the Borrower, the Lenders, the Administrative Agent, all future holders of the Notes and their respective successors and assigns, except that no Credit Party may assign, delegate or transfer any of its rights or obligations under the Loan Documents without the prior written consent of the Administrative Agent and each Lender.
(b) Each Lender mayshall have the right at any time, upon written notice to the Administrative Agent of its intent to do so and the payment of a fee (the "Assignment Fee") of $1,500 to the Administrative Agent by the assigning or -------------- assignee Lender, to sell, assign, transfer or negotiate all or any part of such Lender's rights and obligations under the Loan Documents (i) to one or more of the other Lenders, (ii) to one or more of its affiliates or the affiliates or Approved Funds of one or more of the other Lenders, (iii) to any Federal Reserve Bank or (iv) with the prior written consent of the Borrower, each LC Issuer Borrower and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to the Borrower, required during the continuance of an Event of Default), to any other bank, insurance company, pension fund, mutual fund or other financial institution or fund, which in the normal course of its business, purchases loans such as the Loans, provided that each such sale, -------- assignment, transfer or negotiation pursuant to clause (iv) shall be in no event be less than a minimum amount of $10,000,000 1,000,000 (or, if less, a Lender's entire Credit Exposure). In addition, during the entire 30 day period following the Effective Date, assignments made by the Administrative Agent and the Syndication Agent (excluding assignments of Term Loans in an aggregate principal amount equal to the amount of such Lender’s CommitmentExisting Term Loans held by them on April 20, and 1998) shall not be an integral multiple of subject to the $1,000,000 minimum size restriction or such Lender’s entire Commitmentrequire payment of the Assignment Fee. For each assignment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 Agreement which the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender Administrative Agent shall cease to be record in a party hereto register (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(athe "Register") to maintained by the contrary, (A) the consent Administrative Agent on behalf of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances Loans owing to, each Lender from time to time (and the “Register”registered owners of the obligation(s) evidenced by the Note(s). The entries in the Register shall be conclusive and binding for all purposes, presumptively correct absent manifest error. Upon such execution, delivery, acceptance and recording by the BorrowerAdministrative Agent, from and after the effective date specified in such Assignment and Acceptance Agreement, the assignee thereunder, if not already a Lender, shall be a party hereto and, to the extent provided in such Assignment and Acceptance Agreement, the assignor Lender thereunder shall be released from its obligations under the Loan Documents. The Borrower agrees upon written request of the Administrative Agent and at the Lenders may treat each Person whose name is recorded in Borrower's expense to execute and deliver (i) to such assignee, a Note, dated the Register as a Lender hereunder for all purposes date of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time assignor's Note subject to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed Agreement, in an aggregate principal amount equal to the Loans assigned to, and is in substantially Commitment assumed by, such assignee and (ii) to such assignor Lender, a Note, dated the form date of Exhibit A, (i) accept the assignor's Note subject to such Assignment and AcceptanceAcceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof an aggregate principal amount equal to the Borrowerbalance of such assignor Lender's Loans and Commitment, if any, and each assignor Lender shall cancel and return to the Borrower its existing Note. Upon any such sale, assignment or other transfer, the Commitments and the Pro Rata Shares set forth in Exhibit A shall be adjusted accordingly by the Administrative Agent.
(ec) Each Lender may sell grant participations in all or any part of its Loans, its Note and its Commitment to one or more banks banks, insurance companies, financial institutions, pension funds, mutual funds or other entities (eachfunds which in the normal course of business purchase loans such as the Loans, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) such Lender’s 's obligations under this Agreement the Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto to the Loan Documents for the performance of such obligations, (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the Loan Documents, (iv) such Lender no sub-participations shall retain be permitted and (v) the sole right to approve, without the consent voting rights of any Participant, any amendment, modification or waiver holder of any provision of this Agreement, other than any such amendment, modification or waiver with respect participation shall be limited to any Advance or Commitment in which such Participant has an interest decisions that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires require the consent of all Lenders as set forth in Section 11.1(a). The Borrower acknowledges and has agrees that any such participant shall for purposes of Sections 2.8, 2.10, 2.11, and 2.14 be deemed to be a "Lender"; provided, however, the Borrower shall not, at any time, be obligated to pay any participant in any interest of any Lender hereunder any sum in excess of the sum that the Borrower would have been approved by obligated to pay to such Lender in respect of such interest had such Lender not sold such participation.
(d) If any (i) assignment is made pursuant to subsection (b) above or (ii) participation is granted pursuant to subsection (c) above, to any Person that is not a U.S. Person, such Person shall furnish such certificates, documents or other evidence to the Majority LendersBorrower and the Administrative Agent, then (in the case of clause (i)) within 60 days after , and to the Borrower and the Lender that sold such demand (ifparticipation, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii), as shall be required by Section 2.8(e).
(e) within 60 days after such notice (if such suspension is still in effect) or (in No Lender shall, as between and among the case of clause (iii))Borrower, within 60 days after the date a draft of Administrative Agent, the applicable amendment or waiver was delivered to Syndication Agent, and such Lender, be relieved of any of its obligations under the Loan Documents as the case may bea result of any sale, the Borrower may demand assignment, transfer or negotiation of, or granting of participations in, all or any part of its Loans, its Commitment or its Note, except that such a Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable shall be relieved of its obligations to the Administrative Agent and the LC Issuers extent of any such sale, assignment, transfer, or negotiation of all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all or any part of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail Loans, its Commitment or its Note pursuant to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may subsection (but shall not be required tob) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such periodabove.
(hf) Notwithstanding anything to the contrary contained hereinin this Section, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing at any time or from time to time by assign or pledge all or any portion of its rights under the Granting Loan Documents to (i) a Federal Reserve Bank or (ii) if such Lender is a fund which in the normal course of its business purchases loans such as the Loans, to its lenders or a trustee under an indenture for the benefit of its creditors, to secure such fund's obligations, provided that any such assignment or pledge shall not release such assignor from its obligations thereunder.
(g) In the event that the Borrower shall request that Lenders enter into any amendment, modification, consent or waiver with respect to this Agreement or any other Loan Document, which amendment, modification, consent or waiver cannot become effective without the consent of each Lender, and any Lender elects not to enter into such amendment, modification, consent or waiver (each such Lender being a "Dissenting Lender"), then the Borrower shall have the ----------------- right upon 10 days' written notice to the Administrative Agent and the Borrowersuch Dissenting Lender, the option to provide require each such Dissenting Lender to the Borrower all assign 100% of its Term Loans and Term Loan Notes at par to any Lender or any part of any Advance other financial institution that agrees, in its sole discretion, to assume such Granting Bank would otherwise Term Loans and Term Loan Notes. Each such assignment shall be obligated to make made pursuant to this Agreement; provided that (i) nothing herein an Assignment and Acceptance Agreement and 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain comply with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination other terms of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC11.
Appears in 1 contract
Sources: Term Loan Agreement (Total Renal Care Holdings Inc)
Assignments and Participations. (a) Each Lender Bank may, in accordance with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Sectionapplicable law, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement (including the Letter of Credit Liabilities held by the assigning LenderBank pursuant to Section 2.18), (ii) except in the case of an assignment of all of a Bank’s rights and obligations under this Agreement, (ii) the sum of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, (and shall be an integral multiple in increments of $1,000,000 or such Lender’s entire Commitmentin excess thereof), (iii) each such assignment shall be to an Eligible Assignee, (iv) the Administrative Agent and, if no Event of Default exists, the Parent consent to such assignment (which consent shall not be unreasonably withheld), and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording by the Administrative Agent in the Register, an Assignment and Acceptance, together with any Notes then held by such assigning Bank and any Notes then held by such assignee and a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and Bank hereunder, (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning LenderBank’s rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto (although an assigning Lender except that the rights under Sections 2.06, 2.10, 2.13 and 8.04 of such Bank shall continue with respect to events and occurrences occurring before or concurrently with its ceasing to be a party hereto), and (z) unless the Parent in its sole discretion otherwise consents, no such assignee shall be entitled to indemnification receive any greater payment pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) Sections 2.06, 2.10 and 2.13 than the assigning Bank would have been entitled to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required receive with respect to any assignment by any Lender the rights assigned to an Affiliate such assignee, except as a result of circumstances arising after the date of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunderassignment.
(b) By executing and delivering an Assignment and Acceptance, the Lender Bank 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 Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement any Loan Document or any other instrument or document furnished pursuant hereto or in connection herewith, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement any Loan Document or any other instrument or document furnished pursuant heretohereto or in connection herewith; (ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the any Borrower or any other Person or the performance or observance by the any Borrower or any other Person of any of its respective obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretohereto or in connection herewith; (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(e4.01(d) 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 Administrative Agent, the Issuing Bank, such assigning Lender Bank or any other Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, any of the other Loan Documents or any other instrument or document; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent Administrative Agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative Agent by the terms hereofhereof or thereof, together with such powers and discretion as are reasonably incidental thereto; and (viiix) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank.
(c) The Administrative 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 Lenders Banks and the Commitment Amount of, of and the principal amount of the Advances owing to, each Lender Bank from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent and the Lenders Banks may treat each Person whose name is recorded in the Register as a Lender Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Borrowers or any Lender Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Bank and an assignee representing that it is an Eligible Assignee, together with any Notes then held by such assigning Bank and any Notes then held by such assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerBorrowers. Within five Business Days after its receipt of such notice, an authorized officer of each Borrower shall execute and deliver to the Administrative Agent (i) in exchange for any surrendered Notes a new Note payable to the order of such Eligible Assignee (if a new Note is requested by such Eligible Assignee) in an amount equal to its Commitment after giving effect to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note payable to the order of the assigning Bank (if an new Note is requested by the assigning Bank) in an amount equal to the Commitment retained by it hereunder (such new Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Notes, if any, shall be dated the effective date of such Assignment and Acceptance, shall be properly completed and shall otherwise be in substantially the form of Exhibit A).
(e) Each Lender Bank, in accordance with applicable law, may sell participations to one or more banks or other entities (each, a “Participant”other than the Parent or any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including all or a portion of any of its CommitmentCommitments, the Advances owing to it and its participation in Facility LCsthe Note held by it); provided that (i) such LenderBank’s obligations under this Agreement (including its Commitments to the Borrowers hereunder) shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the Borrowerholder of any such Notes for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent Agent, the Issuing Bank and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank’s rights and obligations under this Agreement and Agreement, (ivv) such Lender shall retain the sole right to approve, without the consent terms of any Participant, such participation shall not restrict such Bank’s ability to make any amendment, modification amendment or waiver of this Agreement or any provision Note or such Bank’s ability to consent to any departure by a Borrower therefrom without the approval of this Agreementthe participant, other than any except that the approval of the participant may be required to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate extent subject to such participation, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance participation, and (vi) unless the Parent in its sole discretion otherwise consents, no such participant shall be entitled to receive any greater payment pursuant to Sections 2.06, 2.10 and 2.13 than such Bank would have been entitled to receive with respect to the rights assigned to such participant by such Bank except as a result of circumstances arising after the date of such participation to the extent that such circumstances affect other Banks and participants generally, and (vii) each participant that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall provide to the Administrative Agent and the Parent a U.S. Internal Revenue Service Form W-8BEN or CommitmentW-8ECI, extends as appropriate, or any Commitmentsuccessor form prescribed by the U.S. Internal Revenue Service, releases duly completed and certifying that such participant is fully exempt from United States withholding taxes with respect to all payments to be made to such participant under such participation agreement, or other documents satisfactory to the Parent and the Administrative Agent indicating that all payments to be made to such participant under such participation agreement are fully exempt from such withholding taxes, and neither the Borrowers nor the Administrative Agent shall have any guarantor obligation to pay to any participant any taxes, penalties, interest or other expenses, costs and losses incurred or payable by the Borrowers or the Administrative Agent as a result of any the failure of such Advance participant to obtain such additional duly completed and signed copies of one or releases any substantial portion the other of collateral, if any, securing any such Advanceforms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) as may be required under then-current United States law or regulations to avoid United States withholding taxes on payments in respect of all amounts to be received by such participant.
(f) Any Lender Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.078.06, disclose to the assignee or participant or proposed assignee or participant, participant any information relating to the Borrower Borrowers or any of their Affiliates furnished to such Lender Bank by or on behalf of the BorrowerBorrowers or any of their Affiliates; provided provided, 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance comply with legal process and other requirements of law)Section 8.09.
(g) If Notwithstanding any Lender other provision set forth in this Agreement, any Bank may at any time (i) shall make demand for payment create a security interest in all or any portion of its rights under Section 2.11(a), 2.11(b) or 2.14, the Loan Documents (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, including the Advances owing to it and its participation the Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to Regulation A of the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent Federal Reserve Board and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant upon notice to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower Borrowers and the Administrative Agent and without paying any processing fee thereforAgent, assign all or a any portion of its interests in any Advance to rights and obligations under the Granting Bank or Loan Documents to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCAffiliates.
Appears in 1 contract
Assignments and Participations. (a) Each Lender Bank may, with upon obtaining the prior written consent of the BorrowerAgent, each LC Issuer Issuing Bank and the Administrative Agent Swing Line Bank (which consents consent by any such party shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Letter of Credit Participations, Swing Line Participations and Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning LenderBank’s rights and obligations under this Agreementso assigned, (ii) the amount of the Commitment Amount of the assigning Lender Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) may be in the amount of such Bank’s entire Commitment but otherwise shall in no event not be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentunless the Company and the Agent otherwise consent, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall (A) execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register, an Assignment and Acceptance, together with Acceptance and (B) deliver to the Agent a processing and recordation fee of $3,500 3,500; provided that the Agent may, in its sole discretion, elect to waive such processing and recording fee, (v) if no Event of Default has occurred and is continuing, the prior written consent of the Company (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and consent shall not be payable if the unreasonably withheld or delayed) shall be required for an assignment by a Bank to an assignee which is not a Federal Reserve Bank or an Affiliate or Approved Fund of a Bank), and (vvi) the consent of the Borrower Agent shall not be required after the occurrence and during the continuance for an assignment by a Bank to an assignee which is a Bank or an Affiliate or Approved Fund of any Event of Defaulta Bank. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder which effective date shall be a party hereto andat least two Business Days after the execution thereof, 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 (y) the Lender Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning LenderBank’s rights and obligations under this Agreement, such Lender Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, the Lender Bank 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 Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower Company or any Borrowing Subsidiary or the performance or observance by the Borrower Company or any Borrowing Subsidiary of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) or 5.01(b) 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 Administrative Agent, such assigning Lender Bank or any other Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank.
(c) The Administrative Agent (or a party designated by the Agent, which may include the Company or any other Borrower) shall maintain at its address referred to in Section 8.02 9.02 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 Lenders Banks and the Issuing Banks and the Commitment Amount of, and principal amount of the Advances owing to, each Lender Bank and the amount of the Letter of Credit Reimbursement Obligations owing to each Issuing Bank from time to time (the “Register”). The Agent (or its designee) shall also reflect in the Register the transfer of any portion of any Bank’s interest in the Notes, any Advances not evidenced by a Note, any Letter of Credit Reimbursement Obligation or any other obligations hereunder (collectively, the “Obligations”), and the Agent (or its designee) shall retain a copy of the assignment transferring the Obligations for the registration or transfer of the Obligations, and shall enter the names and addresses of the transferees of the Obligations. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent Agent, the Banks and the Lenders may Issuing Banks shall treat each Person whose name is recorded in the Register as a Lender Bank or an Issuing Bank, as applicable, hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender Borrowers at any reasonable time and from time to time upon reasonable prior notice. Solely for purposes of this Section 9.08(c) and for tax purposes only, the Agent (or its designee) shall be the Company’s agent for purposes of maintaining the Register and notations of transfer in the Register. The Obligations are registered obligations and the right, title and interest of any Bank or Issuing Bank and/or its assignees in and to such Obligations shall be transferable only upon notation of such transfer in the Register (and each Note shall expressly so provide). This Section 9.08(c) shall be construed so that the Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related Treasury Regulations.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Bank and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC-1 hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the BorrowerBorrowers.
(e) Each Lender Bank may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, Commitment and the Advances owing to it and its participation in Facility LCsthe Letter of Credit Participations, Swing Line Participations and Note or Notes held by it); provided provided, however, that (i) such LenderBank’s obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the Borrowerholder of any such Note and Letter of Credit Participations and Swing Line Participations and the maker of any Advance for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent Agent, any Issuing Bank and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank’s rights and obligations under this Agreement Agreement, and (ivv) any agreement between such Lender Bank and any participant in connection with such participating interest shall retain the sole not restrict such Bank’s right to approve, without the consent of agree to any Participant, any amendment, modification amendment or waiver of any provision of this Agreement, other than or any such amendment, modification or waiver with respect consent to any Advance or Commitment in which departure by any Borrower therefrom, except (to the extent such Participant has an interest that forgives principal, interest or fees or reduces participant would be affected thereby) a reduction of the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor postponement of any such Advance date fixed for payment thereof or releases a release of the Company’s guaranty obligations pursuant to Article 8. Each Bank that sells a participation shall, acting solely for this purpose as an agent of the applicable 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 obligations under this Agreement (the “Participant Register”); provided that no Bank shall have any substantial obligation to disclose any portion of collateralthe Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any commitments, if anyloans, securing letters of credit or its other obligations under this Agreement) 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 U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any such Advancenotice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose The Company and each Borrower agree that each participant shall be entitled to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf benefits of the Borrower; provided 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 relating to the Borrower received by it from such Lender Sections 2.15 and 2.20 (subject to customary exceptions regarding regulatory requirementsthe requirements and limitations therein, compliance including the requirements under Section 2.20(f) (it being understood that the documentation required under Section 2.20(f) shall be delivered to the participating Bank)) to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that such participant (A) agrees to be subject to the provisions of Sections 2.20(i) and 2.21 as if it were an assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.15 or 2.20, with legal process and other requirements of law)respect to any participation, than its participating Bank would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation.
(g) If Notwithstanding any Lender (i) shall make demand for payment under Section 2.11(a)other provisions set forth in this Agreement, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such LenderBank at any time may assign, as the case may becollateral or otherwise, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all any of its other rights and obligations hereunder within (including, without limitation, rights to payments of principal of and/or interest on the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required toAdvances) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance to any Federal Reserve Bank or any central bank having jurisdiction over such Bank without notice to or consent of the foregoingCompany, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) thatany Borrowing Subsidiary, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, upon notice to the Borrowers and the Agent and with the prior written consent of the Borrowerconsent, each LC Issuer and the Administrative Agent (which consents shall not to be unreasonably withheld or delayed), of the Agent, and, unless an Event of Default has occurred and if demanded is continuing, the Borrowers (which consent shall be deemed given by the Borrower pursuant Borrowers if the Borrowers have not responded to Section 8.07(ga request for such consent within ten (10) shall to the extent required by such SectionBusiness Days), assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances Term Loan and other amounts owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, however, that (i) reserved; (ii) reserved, (iii) each such assignment with respect to any Class of rights and obligations shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement with respect to such Class, (iv) except in the case of the assigning an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount amount of the Term Loan of the assigning Term Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if less, the entire outstanding amount of the Term Loan held by such Term Lender’s Commitment, ) unless the Borrowers and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentthe Agent otherwise agree, (iiiv) each such assignment shall be to an Eligible Assignee, (ivvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, and the parties to such assignment (other than the Borrowers and the Agent) shall deliver together with therewith any Note subject to such assignment and a processing and recordation fee of $3,500 (which except no such fee shall be payable by one or more of the parties for assignments to the Assignment and Acceptancea Lender, and not by the Borrower (except in the case an Affiliate of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve BankLender or an Approved Fund), and (vvii) any Lender may, without the consent approval of the Borrower shall not be required after Borrowers, but with notice to the occurrence Borrowers, assign all or a portion of its rights and during the continuance obligations to any of any Event of Defaultits Affiliates or to another Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (other than its rights under Section 2.12, 2.15 and 9.04 to the extent any claim thereunder relates to an event arising prior such assignment) 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 hereto).
(although an assigning b) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained effective unless and until, in this Section 8.07(a) addition to the contraryother 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 (A) which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the BorrowerAgent, the LC Issuers applicable pro rata share of Term 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 shall not be required with respect to or any Lender hereunder (and interest accrued thereon). Notwithstanding the foregoing, in the event that any assignment by of rights and obligations of any Defaulting Lender to an Affiliate 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 or to another Lender and (B) any Lender may at any time, without the consent for all purposes of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no until such assignment shall release the transferor Lender from any of its obligations hereundercompliance occurs.
(bc) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 other Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents or any other instrument or document furnished pursuant heretohereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower Loan Parties or the performance or observance by the Borrower Borrowers of any of its their obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 5.01 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 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 AgreementAgreement and the other Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(cd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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 B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers.
(e) The Administrative Agent shall maintain at its address referred to in Section 8.02 9.02 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 Lenders and the Commitment Amount of, and principal amount of the Advances Term Loan owing to, to each Term Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerBorrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(ef) Each Lender may may, without the consent of the Agent or any Loan Party, sell participations to one or more banks or other entities (each, other than the Borrowers or any of their Affiliates that is not a “Participant”Permitted Holder) in or to all or a portion of its rights and/or and obligations under this Agreement (including all or a portion of its Commitment, the Advances Term Loan owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the Borrowerholder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Loan Document, other than or consent to any departure by any Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect consent would require the affirmative vote of the Lender from which it purchased its participation pursuant to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such AdvanceSection 9.01(a).
(fg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to Holdings, the Borrower Borrowers or their Subsidiaries furnished to such Lender by or on behalf of the BorrowerBorrowers; provided 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 Borrower Information relating to Holdings, the Borrower Borrowers or their Subsidiaries received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period9.08.
(h) Notwithstanding anything to the contrary contained hereinany other provision set forth in this Agreement, any Lender (may at any time create a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such security interest in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part portion of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation its rights under this Agreement (all liability for which shall remain with including the Granting Bank). In furtherance portion of the foregoingTerm Loan owing to it and any Notes held by it), each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) thatincluding, prior to the date that is one year and one day after the payment without limitation, in full of all outstanding commercial paper or other senior indebtedness favor of any SPC, it will not institute against, or join any other person Federal Reserve Bank in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws accordance with Regulation A of the United States or any State thereof. In addition, notwithstanding anything to Board of Governors of the contrary contained in this Section 8.07, any SPC may Federal Reserve System.
(i) with The Borrowers, upon receipt of written notice tofrom the relevant Lender, but agree to issue Notes to any Lender to facilitate transactions of the type described in paragraph (g) above.
(j) Neither Holdings nor any Borrower shall have the right to assign its rights hereunder or any interest herein without the prior written consent ofof each of the Lenders (except, in the Borrower and the Administrative Agent and without paying any processing fee thereforcase of SRAC, assign all or a portion of its interests in any Advance pursuant to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC6.01(d)).
Appears in 1 contract
Assignments and Participations. (a) Each Lender Any Bank may, with the prior written consent of the Borrower, each LC Issuer Company (at all times other than during the existence of an Event of Default) and the Administrative Agent (Agent, which consents consent of the Company shall not be unreasonably withheld or delayed)withheld, at any time assign and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign delegate to one or more banks Eligible Assignees (provided that no written consent of the Company or the Agent shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate of such Bank) (each an "ASSIGNEE") all, or any ratable part of all, of the Revolving Loans, the Commitment and the other entities all or a portion of its rights and obligations under this Agreement (including all or of such Bank hereunder, in a portion minimum amount of its Commitment$5,000,000; PROVIDED, HOWEVER, that the Advances owing Company and the Agent may continue to it deal solely and its participation directly with such Bank in Facility LCs); provided that connection with the interest so assigned to an Assignee until (i) each written notice of such assignment assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall be of a constant, have been given to the Company and not a varying, percentage of all of the assigning Lender’s rights Agent by such Bank and obligations under this Agreement, the Assignee; (ii) such Bank and its Assignee shall have delivered to the Commitment Amount of Company and the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Agent an Assignment and Acceptance in the form of EXHIBIT E ("ASSIGNMENT AND ACCEPTANCE") together with respect any Revolving Note or Revolving Notes subject to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, assignment and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver assignor Bank or Assignee has paid to the Administrative Agent, for its acceptance and recording Agent a processing fee in the Register, amount of $3,000.
(b) From and after the date that the Agent notifies the assignor Bank that it has received (and provided its consent with respect to) an executed Assignment and Acceptance, together with a processing and recordation fee of $3,500 Acceptance (which shall be payable accompanied by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the any written consent of the Borrower shall not be required after Company to the occurrence extent required) and during payment of the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptanceabove-referenced processing fee, (xi) the assignee 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, shall have the rights and obligations of a Lender hereunder Bank under the Loan Documents, and (yii) the Lender assignor thereunder Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a LenderLoan Documents.
(c) The Administrative Within five Business Days after its receipt of notice by the Agent shall maintain at its address referred to in Section 8.02 a copy of each that it has received an executed Assignment and Acceptance delivered to and accepted (accompanied by it and a register for the recordation any written consent of the names Company to the extent required) and addresses payment of the Lenders processing fee, (and provided that it consents to such assignment in accordance with subsection 15.7(a)), the Company shall execute and deliver to the Agent, new Revolving Notes evidencing such Assignee's assigned Revolving Loans and Commitment Amount ofand, if the assignor Bank has retained a portion of its Revolving Loans and its Commitment, replacement Revolving Notes in the principal amount of the Advances owing toRevolving Loans retained by the assignor Bank (such Revolving Notes to be in exchange for, each Lender from time to time (but not in payment of, the “Register”Revolving Notes held by such Bank). The entries in Immediately upon each Assignee's making its processing fee payment under the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible be deemed to be amended to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (ifextent, but only ifto the extent, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by necessary to reflect the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft addition of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent Assignee and the LC Issuers all resulting adjustment of the Commitments (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part related Percentage of any Advance that such Granting Bank would otherwise be obligated to make pursuant to this Agreement; provided that (ieach Bank) 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.arising
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall such consent not to be unreasonably withheld or delayed), and and, if demanded by the Borrower pursuant to Section 8.07(g) 8.14 upon at least five Business Days' notice to such Lender and the Agent, shall to the extent required by such Section, assign to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 5,000,000 or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof unless the Borrower and the Agent otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) any term or provision hereof to the contrary notwithstanding, the consent of the Agent shall not be required for an assignment to any Lender or one or more of such Lender's Affiliates and (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 payable by the parties to each such assignment (which unless such fee shall otherwise be waived by the Agent), provided, however, that in the case of each assignment made as a result of a demand by the Borrower pursuant to Section 8.14, such recordation fee shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except that no such recordation fee shall be payable in the case of a demand under Section 8.07(g)), and shall not be payable if an assignment made at the assignee is a Federal Reserve Bank), and (v) the consent request of the Borrower to an Eligible Assignee that is an existing Lender or an Affiliate of an existing Lender or shall not otherwise be required after waived by the occurrence and during the continuance of any Event of DefaultAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (other than its rights under Sections 2.10, 2.13 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible 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.
(d) The Administrative 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 Lenders and the Commitment Amount Commitments of, and principal amount of the Advances owing to, each Lender from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsany Note or Notes held by it); provided provided, however, that (i) such Lender’s 's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Note, other than or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Notes or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate extent subject to such participation, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advanceparticipation.
(f) Each Lender that sells a participating interest in all or a portion of its rights and obligations under this Agreement to a participant shall, as agent of the Borrower solely for the purpose of this Section 8.07, record in book entries maintained by such Lender the name and the amount of the participating interest of each participant entitled to receive payments in respect of such participating interests.
(g) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, (i) the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any confidential information Borrower Information relating to the Borrower received by it from such Lender on substantially the same terms as provided in Section 8.08 and (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements ii) such Lender shall notify the Borrower of law)such assignment or participation.
(gh) If Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation any Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment Regulation A of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance Board of Governors of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCFederal Reserve System.
Appears in 1 contract
Sources: Bridge Credit Agreement (Tribune Co)
Assignments and Participations. (a) Each Lender may, with the prior written consent (including any affiliate of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gany Issuing Lender that issues any Letter of Credit) shall to the extent required by such Section, may assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentLoans, the Advances owing to it its Note and its participation in Facility LCsRevolving Credit Commitment); provided that provided, however, that:
(i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, any such partial assignment shall be in an amount at least equal to $5,000,000 or an integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant, and not varying, percentage of all of its rights and obligations under this Agreement;
(iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, Agent for its acceptance and recording in the Register, an Assignment and AcceptanceAcceptance in the form of Exhibit B hereto, together with any Note subject to such assignment and a processing and recordation fee of $3,500 (which amount shall not be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower Borrower);
(v) except in the case of a demand under Section 8.07(g))an assignment to another Lender, and any assignment hereunder shall not be payable if the assignee is a Federal Reserve Bank), and (v) require the consent of the Agent, each Issuing Lender and, unless a Default or Event of Default has occurred and is continuing, the Borrower, such consent in each case not to be unreasonably withheld; and
(vi) neither the Parent nor the Borrower shall incur any greater expense or liabilities (including, without limitation, indemnities and increased costs (other than with respect to taxes, which shall be governed by the provisions of Section 5.6)) than it would have incurred had such assignment not be required after the occurrence and during the continuance of any Event of Defaulttaken place. Upon such execution, delivery, and acceptance and recording, from and after the effective date specified in each of such Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to of such Assignment and Acceptanceassignment, have the rights obligations, rights, and obligations benefits of a Lender hereunder and (y) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights and be released from its obligations under this Agreement and, in Agreement. Upon the case consummation 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 (although an assigning Lender shall continue to be entitled to indemnification any assignment pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) Section, the assignor, the Agent and the Borrower shall make appropriate arrangements so that, if required, new Notes are issued to the contrary, (A) the consent of the Borrower, the LC Issuers assignor and the Administrative assignee. If the assignee is a Non-U.S. Lender, it shall deliver to the Borrower and the Agent shall not be required certification as to exemption from deduction or withholding of Taxes in accordance with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunderSection 5.6.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 12.2 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 Lenders and the Revolving Credit Commitment Amount of, and principal amount of the Advances Loans and L/C Obligations owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Parent, the Borrower, the Administrative Agent Agent, the Issuing Lenders and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Parent, the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(dc) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender the parties thereto, together with any Note subject to such assignment and an assignee representing that it is an Eligible Assigneepayment of the processing fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AB hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowerparties thereto.
(ed) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) Persons in or to all or a portion of its rights, obligations or rights and/or and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and Revolving Credit Commitment or its participation in Facility LCsLoans); provided provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, participant shall be entitled to the Administrative Agent benefit of the yield protection provisions contained in Article V and the other Lenders right of set-off contained in Section 12.3, (iv) neither the Parent nor the Borrower shall have any greater obligation to a participant than it would have had to such Lender in the absence of the existence of such participant and (v) the Parent and the Borrower shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement Agreement, and (iv) such Lender shall retain the sole right to approve, without enforce the consent obligations of any Participant, the Borrower relating to its Loans and to approve any amendment, modification modification, or waiver of any provision of this Agreement, Agreement (other than any such amendmentamendments, modification modifications, or waiver with respect to any Advance waivers decreasing the amount of principal of or Commitment in the rate at which such Participant has an interest that forgives principal, interest or fees are payable on such Loans, extending any scheduled principal payment date or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled the payment of principal ofinterest on such Loans, releasing all or substantially all of the Collateral, releasing all or substantially all of the Guarantors, or interest extending or fees onincreasing its Revolving Credit Commitment).
(e) Notwithstanding any other provision set forth in this Agreement, any such Advance Lender may at any time assign and pledge all or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing its Loans to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such AdvanceFederal Reserve Bank. No such assignment shall release the assigning Lender from its obligations hereunder.
(f) Any Lender 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, may furnish any information relating to concerning the Borrower furnished to Parent or any of its Subsidiaries in the possession of such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to assignees and participants (including prospective assignees and participants), subject, however, to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part provisions of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC12.15.
Appears in 1 contract
Sources: Credit Agreement (Seacastle Inc.)
Assignments and Participations. (a) Each Lender maySubject to the provisions of Section 11.11(j), with after first obtaining the prior written consent approval of the Agent and Borrower, each LC Issuer and the Administrative Agent (which consents shall approval will not be unreasonably withheld or delayed(and which approval from Borrower shall not be required upon the occurrence and during the continuance of an Event of Default), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, each Lender may assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement in accordance with the provisions of this Section (including without limitation all or a portion of its Commitment, Commitment and the Advances Loans owing to it and its participation in Facility LCsit); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s 's rights and obligations under this AgreementAgreement and the assignment shall cover the same percentage of such Lender's Commitment and Loans, (ii) unless Agent and Borrower otherwise consent (which consent of Borrower shall not be required upon the occurrence and during the continuance of an Event of Default), the aggregate amount of the Commitment Amount of the assigning Lender being assigned to an Eligible Assignee that is not already a Lender hereunder (provided such Lender was also a Lender on the Closing Date) pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than Five Million Dollars ($10,000,000 or, if less, the entire amount of such Lender’s Commitment, 5,000,000) and shall be an integral multiple of One Million Dollars ($1,000,000 or such Lender’s entire Commitment1,000,000), (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance approval and recording in the Registeracceptance, an Assignment and Acceptance, together with Assumption and (iv) Agent shall receive from the assignor or assignors for its sole account a processing and recordation fee of Three Thousand Five Hundred Dollars ($3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g3,500)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance approval and recordingacceptance, from and after upon the effective date specified in each the applicable Assignment and AcceptanceAssumption, (xA) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been validly and effectively assigned to it pursuant to such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder and (yB) the Lender Lender-assignor thereunder shall, to the extent that rights and obligations hereunder have been validly and effectively assigned by it pursuant to such Assignment and AcceptanceAssumption, 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and AcceptanceAssumption, the Lender 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 AcceptanceAssumption, 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 Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan 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 REIT, Borrower, any Subsidiary, any Investment Affiliate, or any Agreement Party or the performance or observance by the Borrower REIT, Borrower, any Subsidiary, any Investment Affiliate, or any Agreement Party of any of its their respective obligations under this Agreement any Loan 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 financial statements referred to in Section 4.01(e) Article VI or delivered pursuant to Article VI to the date of such assignment and such other Loan 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 AcceptanceAssumption; (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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent Agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; and (viivi) 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.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 on the counterpart signature pages hereof a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register for the recordation of shall record the names and addresses of the Lenders each Lender and the Commitment Amount of, and principal amount of the Advances Loans owing to, each such Lender from time to time (the “Register”)time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is so recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, Bank may assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentRevolving Loan, the Advances owing to it its Note, and its participation in Facility LCsCommitment); provided that provided, however, that
(i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, ;
(ivii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of an assignment to another Bank or an assignment of all of a demand Bank's rights and obligations under Section 8.07(g))this Agreement, any such partial assignment shall be in an amount at least equal to $5,000,000 or an integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Bank shall be of a constant, and shall not be payable if varying, percentage of all of its rights and obligations under this Agreement and the assignee is a Federal Reserve Bank), Note; and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, and acceptance and recording, from and after the effective date specified in each of such Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to of such Assignment and Acceptanceassignment, have the rights obligations, rights, and obligations benefits of a Lender Bank hereunder and (y) the Lender assignor thereunder assigning Bank shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights and be released from its obligations under this Agreement and, in Agreement. Upon the case consummation 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 (although an assigning Lender shall continue to be entitled to indemnification any assignment pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the BorrowerSection, the LC Issuers and assignor, the Administrative Agent and the Borrower shall make appropriate arrangements so that, if required, new Notes are issued to the assignor and the assignee. If the assignee is not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without incorporated under the consent laws of the BorrowerUnited States of America or a state thereof, any LC Issuer it shall deliver to the Borrower and the Agent certification as to exemption from deduction or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part withholding of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunderTaxes in accordance with Section 13.6(d).
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 14.01 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 Lenders Banks and the Commitment Amount and Commitment Percentage of, and principal amount of the Advances Revolving Loan owing to, each Lender Bank from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders Banks may treat each Person whose name is recorded in the Register as a Lender Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender Bank at any reasonable time and from time to time upon reasonable prior notice.
(dc) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender the parties thereto, together with any Note subject to such assignment and an assignee representing that it is an Eligible Assigneepayment of the processing fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AJ hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowerparties thereto.
(ed) Each Lender Bank may sell participations to one or more banks or other entities (each, a “Participant”) Persons in or to all or a portion of its rights, obligations, or rights and/or and obligations under this Agreement (including all or a portion of its Commitment, Commitment or its interest in the Advances owing to it and its participation in Facility LCsRevolving Loan); provided provided, however, that (i) such Lender’s Bank's obligations under this Agreement shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, participant shall be entitled to the Administrative Agent benefit of the yield protection provisions contained in Article XIII and the other Lenders right of set-off contained in Section 14.04, and (iv) the Borrower shall continue to deal solely and directly with such Lender Bank in connection with such Lender’s Bank's rights and obligations under this Agreement Agreement, and (iv) such Lender Bank shall retain the sole right to approve, without enforce the consent obligations of any Participant, the Borrower relating to its Revolving Loan and its Note and to approve any amendment, modification modification, or waiver of any provision of this Agreement, Agreement (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is payable on such Revolving Loan or Note, extending any such amendment, modification scheduled principal payment date or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled the payment of principal ofinterest on such Revolving Loan or Note, or interest or fees onextending its Commitment). CREDIT AGREEMENT PAGE 61 68 (e) Notwithstanding any other provision set forth in this Agreement, any such Advance or Commitment, extends Bank may at any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process time assign and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower pledge all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or Revolving Loan and its Note to any financial institution (consented Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 assigning Bank from 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCobligations hereunder.
Appears in 1 contract
Assignments and Participations. (a) Each Lender maymay and, with the prior written consent of the Borrowerso long as no Default shall have occurred and be continuing, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall 2.18 upon at least five Business Days’ notice to such Lender and the extent required by such SectionAdministrative Agent, will assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Special L/C Commitment, the Special L/C Advances owing to it and its participation in Facility LCsthe Special L/C Note or Special L/C Notes held by it); provided provided, however, that (i) each except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment shall be of a constant, and not a varying, percentage of all of the assigning a Lender’s rights and obligations under this Agreement, (ii) the Commitment Amount aggregate amount of the assigning Lender Special L/C Commitments being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire 2,000,000 (or such lesser amount of such Lender’s Commitment, and as shall be an integral multiple approved by the Administrative Agent); provided, that simultaneous assignments by two or more Related Funds shall be treated as one assignment for purposes of $1,000,000 or such Lender’s entire Commitmentthe minimum assignment requirement, (iiiii) each such assignment shall be to an Eligible AssigneeAssignee and (A) each Applicable Special L/C Issuing Bank with an Applicable Special L/C Issuing Commitment (based on whether the Special L/C Commitments being assigned are Tranche A Special L/C Commitments or Tranche B Special L/C Commitments) shall have consented to such assignment, (B) so long as no Event of Default shall have occurred and be continuing, the Borrower shall have consented to such assignment and (C) to the extent such assignment is to any Eligible Assignee that, immediately prior to such assignment, was not a Lender, an Affiliate of a Lender or an Approved Fund, the Administrative Agent shall have consented to such assignment (in each case such consent not to be unreasonably withheld or delayed), (iii) each such assignment made as a result of a demand by the Borrower pursuant to Section 2.18 or 9.01 shall be arranged by the Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (iv) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to Section 2.18 or 9.01 unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Special L/C Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (v) no such assignments shall be permitted without the consent of the Administrative Agent until the Administrative Agent shall have notified the Lender Parties that syndication of the Commitments hereunder has been completed and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and AcceptanceLSP Gen Finance Special L/C Facility Agreement Acceptance via an electronic settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), together with (A) any Special L/C Note or Special L/C Notes (if any) subject to such assignment, (B) an administrative questionnaire and tax forms, if applicable and (C) a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); provided, however, that only one such fee shall be payable with respect to simultaneous assignments by or to one or more Related Funds; provided, further, that for each such assignment made as a result of the parties to the Assignment and Acceptance, and not a demand by the Borrower (except in the case of a demand under pursuant to Section 8.07(g))2.18 or 9.01, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after pay to the occurrence Administrative Agent the applicable processing and during the continuance of any Event of Default. recordation fee.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, (xi) 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 or Special L/C Issuing Bank, as the case may be, hereunder and (yii) the Lender or Special L/C Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.14, 2.16 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s or Special L/C Issuing Bank’s rights and obligations under this Agreement, such Lender or Special L/C Issuing Bank shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the each Lender Party assignor thereunder and the each assignee thereunder confirm to and agree with each other and the other parties thereto and 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 statements, warranties or representations made in or in connection with this Agreement any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of this Agreement any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant heretothereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (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(e) 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 Administrative any 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 Administrative each Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative such Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental LSP Gen Finance Special L/C Facility Agreement thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement or any other Loan Document (including the Intercreditor Agreement) are required to be performed by it as a LenderLender or Special L/C Issuing Bank, as the case may be.
(cd) The Administrative Agent Agent, acting for this purpose (but only for this purpose) as the agent of the Borrower, shall maintain at its address referred to in Section 8.02 9.02 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 Lenders Lender Parties and the Special L/C Commitment Amount of, and principal amount of the Special L/C Advances owing to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders may Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee representing that it is an Eligible Assigneeassignee, together with any Special L/C Note (if any) subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AA hereto, (i) accept such Assignment and Acceptance, Acceptance and (ii) record the information contained therein in the Register Register. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Special L/C Note (if any) a new Special L/C Note to the order of such Eligible Assignee in an amount equal to the Special L/C Commitment assumed by it under the Special L/C Facility pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Special L/C Note prior to such assignment has retained a Special L/C Commitment hereunder under the Special L/C Facility, a new Special L/C Note to the order of such assigning Lender in an amount equal to the Special L/C Commitment retained by it hereunder. Such new Special L/C Note shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit B hereto.
(f) Each Special L/C Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Special L/C Issuing Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was a Special L/C Issuing Bank or an assignment of all of a Special L/C Issuing Bank’s rights and obligations under this Agreement, the amount of the Special L/C Issuing Commitment of the assigning Special L/C Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $2,000,000, (ii) each such assignment shall be to an Eligible Assignee and, so long as no Event of Default shall have occurred and be continuing, the Borrower shall have consented to such assignment and (iii) give prompt notice thereof the parties to each such assignment shall execute and deliver to the Borrower.Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which fee may be increased or reduced in the sole discretion of the Administrative Agent). LSP Gen Finance Special L/C Facility Agreement
(eg) Each Lender Party may sell participations to one or more banks Persons (other than any Loan Party or other entities (each, a “Participant”any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentCommitments, the Special L/C Advances owing to it and its participation in Facility LCsthe Special L/C Note (if any) held by it); provided provided, however, that (i) such LenderLender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Special L/C Note for all purposes of this Agreement, and (iv) the Borrower, the Administrative Agent Agents and the other Lenders Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such LenderLender Party’s rights and obligations under this Agreement Agreement, and (iv) such Lender shall retain the sole right to approve, without enforce the consent obligations of any Participant, the Borrower relating to the Special L/C Advances and to approve any amendment, modification or waiver of any provision of this Agreement, Agreement (other than amendments, modifications or waivers decreasing any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to hereunder or the amount of principal of or the rate at which interest is payable on the Special L/C Advances, extending any such Advance scheduled principal date or Commitment, postpones any date fixed for any regularly scheduled the payment of principal ofinterest on the Special L/C Advances, increasing or interest extending the Special L/C Commitments or fees on, releasing any such Advance Guarantor or Commitment, extends any Commitment, releases any guarantor all or substantially all of any such Advance or releases any substantial portion of collateral, if any, securing any such Advancethe Collateral).
(fh) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.07, disclose to the assignee or participant or proposed assignee or participant, participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided 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 relating to the Borrower Confidential Information received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Party.
(gi) If 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 (i) shall make demand for payment under Section 2.11(a)including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may bewithout limitation, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Special L/C Advances owing to it and its participation the Special L/C Note or Special L/C Notes (if any) held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such periodRegulation A of the Board of Governors of the Federal Reserve System.
(hj) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may create a security interest in all or any portion of the Special L/C Advances owing to it and any Special L/C Note or Special L/C Notes held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that, unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.
(k) Notwithstanding anything to the contrary contained herein, any Lender Party (a “Granting BankLender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such LSP Gen Finance Special L/C Facility Agreement in writing from time to time by the Granting Bank Lender to the Administrative Agent and the Borrower, Borrower (an “SPC”) the option to provide to the Borrower all or any part of any Special L/C Advance that such Granting Bank Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make fund any Advance, Special L/C Advance and (ii) if an SPC elects not to exercise such option or otherwise fails to provide make all or any part of such Special L/C Advance, the Granting Bank Lender shall be obligated to make such Special L/C Advance pursuant to the terms hereof. The making of an a Special L/C Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank Lender to the same extent, and as if, such Special L/C Advance were made by such Granting BankLender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoinga Lender Party would be liable, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 no SPC shall be entitled to the benefits of Sections 2.14 and 2.16 (or any non-public information relating to its Advances to any rating agencyother increased costs protection provision) and (iii) the Granting Lender shall for all purposes, commercial paper dealer or provider including, without limitation, the approval of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.
Appears in 1 contract
Sources: Special Letter of Credit Facility Agreement (Dynegy Inc /Il/)
Assignments and Participations. (a) Each Lender mayExcept as expressly permitted by Section 5.02(c), with neither the Company nor any Borrower may assign or otherwise transfer any of its rights hereunder without the prior written consent of the BorrowerAgent and each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void). Each Lender may and, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the a Borrower (following a demand by such Lender pursuant to Section 8.07(g2.12, upon a requirement to pay or indemnify Indemnified Taxes with respect to such Lender pursuant to Section 2.15 or upon such Lender becoming a Defaulting Lender) shall upon at least five Business Days’ notice to such Lender and the extent required by such SectionAgent will (at the Borrower’s sole expense), assign assign, with the consent, not to be unreasonably withheld, of the Agent and the Company, to one or more banks or other entities Persons all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of one or more of its CommitmentRevolving Credit Commitments, the Advances (other than Competitive Bid Advances) owing to it it, and its participation in Facility LCsthe Note or Notes (other than Competitive Bid Notes) held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement under the Facility under which such Lender has a Revolving Credit Commitment, (ii) except in the case of the assigning an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the amount of the Revolving Credit Commitment Amount of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be 20,000,000 or an integral multiple of $1,000,000 or such Lender’s entire Commitmentin excess thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by a Borrower pursuant to this Section 9.07(a) shall be arranged by such Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by a Borrower pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either such Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 (which payable by the parties to each such assignment, provided, however, that in the case of an assignment made as a result of a demand by a Borrower, such recordation fee shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the such Borrower (except that no recordation fee shall be payable in the case of an assignment made at the request of a demand under Section 8.07(g))Borrower to an Eligible Assignee that is an existing Lender, and provided further that no such assignment shall not be payable if the assignee is made to a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of DefaultDefaulting Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 Company or the performance or observance by the Borrower Borrowers of any of its their obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agent, the Sub-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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent and the Sub-Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent and the Sub-Agent, respectively, by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Credit 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 Company and each other Borrower.
(d) The Administrative Agent shall maintain at its address referred to in Section 8.02 9.02 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 Lenders and the Revolving Credit Commitment Amount of, and principal amount and interest amounts of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, purposes absent manifest error, and the Company, each other Borrower, the Administrative Agent, the Sub-Agent and the Lenders may shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. In addition, the Agent shall maintain on the Register information regarding the designation and revocation of designation of any Lender as a Defaulting Lender. The Register shall be available for inspection by the Company, any other Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”other than the Company or any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its CommitmentRevolving Credit Commitments, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Revolving Credit Commitments to the Company and the other Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Company and each other Borrower, the Administrative Agent, the Sub-Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this AgreementAgreement or any Note, other than or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect to consent would reduce the principal of, or interest on, the Advances or any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces other amounts payable hereunder, in each case to the interest rate extent subject to such participation, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advanceparticipation.
(f) Any Lender may, in connection with any an assignment or participation or proposed assignment or participation pursuant to this Section 8.079.07, disclose to the assignee or participant an existing or proposed assignee or participant, participant any information relating to the Company or any Borrower furnished to such Lender by or on behalf of the Company or such Borrower; provided provided, however, that, prior to any such disclosure, the assignee or participant existing or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information Confidential Information relating to the Company or any Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law)Lender.
(g) If Notwithstanding any other provision set forth in this Agreement, any Lender may, without the consent of the Company or the Agent, (i) shall make demand for payment at any time create a security interest in all or any portion of its rights under Section 2.11(a)this Agreement (including, 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitmentwithout limitation, the Advances owing to it and its participation the Note or Notes held by it) in the Facility LCs and all favor of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee Federal Reserve Bank in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment Regulation A of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance Board of Governors of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances Federal Reserve System and (ii) disclose on a confidential basis any non-public information relating assign, with notice to the Company and the Agent, all or part of its Advances rights or obligations under this Agreement to any rating agency, of its Affiliates that is engaged in the business of commercial paper dealer banking or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCother Lender.
Appears in 1 contract
Assignments and Participations. (a) Each This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender mayand their respective successors and assigns; provided, with however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Borrower, each LC Issuer Lenders' prior written consent shall be null and void.
(b) Each Lender may (x) with the Administrative written consent of the Collateral Agent (which consents such consent shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, assign to one or more banks other lenders or other entities all or a portion of its rights and obligations under this Agreement (including with respect to all or a portion of its Commitment, the Advances owing to it Term Loan Commitment and its participation in Facility LCs); provided that (i) each such assignment shall be of a constantany Term Loan made by it, and not a varying, percentage of all (y) with the written consent of the assigning Lender’s Administrative Agent (which such consent shall not be unreasonably withheld or delayed), assign to one or more other lenders or other entities all or a portion of its rights and obligations under this AgreementAgreement with respect to all or a portion of its Revolving Credit Commitment and the Revolving Loans made by it; provided, however, that (i) such assignment is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (x) a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (y) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof), (ii) except as provided in the Commitment Amount second to the last sentence of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 orthis 0, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall (x) execute and deliver to the Collateral Agent (and the Administrative Agent, if applicable), for its acceptance and recording in the Registeracceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent (or the Administrative Agent, in the case of an assignment of any Revolving Credit Commitment and Revolving Loans), a processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to the Assignment and Acceptance, and not by the Borrower 5,000 (except in the case payment of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower such fee shall not be required after in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) and (y) deliver to the occurrence Borrower an executed copy of such Assignment and during Acceptance and (iii) no written consent of the continuance Collateral Agent or the Administrative Agent and no notice to the Borrower shall be required (1) in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (2) if such assignment is in connection with any Event merger, consolidation, sale, transfer, or other disposition of Defaultall or any substantial portion of the business or loan portfolio of such Lender. Upon such execution, delivery, acceptance delivery and recordingacceptance, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least 3 Business Days after the delivery thereof to the Administrative Agent or, in the case of an assignment of any Term Loan Commitment or Term Loan, the Collateral Agent (xor such shorter period as shall be agreed to by the Administrative Agent, or the Collateral Agent, as applicable, and the parties to such assignment), (A) the assignee thereunder shall be become a party hereto "Lender" hereunder and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder Acceptance and (yB) the assigning 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 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)hereto). Notwithstanding anything to the contrary contained in this Section 8.07(a) to 0, a Lender may assign any or all of its rights under the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender Loan Documents to an Affiliate of such Lender or to another a Related Fund of such Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have delivering an Assignment and Acceptance executedto the Agents or to any other Person (a "Related Party Assignment"); provided, assign all however, that (I) the Borrower and the Administrative Agent (and the Collateral Agent, as applicable) may continue to deal solely and directly with such assigning Lender until an Assignment and Acceptance has been delivered to the Administrative Agent (or the Collateral Agent, as applicable) for recordation on the Register, (II) the Administrative Agent (and the Collateral Agent, as applicable) may continue to deal solely and directly with such assigning Lender until receipt by the Administrative Agent (or the Collateral Agent, as applicable) of a copy of the fully executed Assignment and Acceptance pursuant to Section 12.07(e), (III) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Agents shall not affect the legality, validity, or binding effect of such assignment, and (IV) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date specified in such Assignment and Acceptance and recorded on the Related Party Register (as defined below). Each Lender, who makes an assignment or sale pursuant to the foregoing sentence where the Assignment and Acceptance is not delivered to Administrative Agent (or the Collateral Agent, as applicable), shall indemnify and agree to hold Agents, the Borrower and the other Lenders harmless from and against any part United States federal withholding tax that would not have been imposed but for (i) the failure of its rights under the Affiliate or the Related Fund that received such assignment to comply with this Agreement or (ii) the failure of such Lender to withhold such tax at the proper rate in the event such Affiliate or Related Fund does not comply with this Agreement (or complies with this Agreement but delivers forms indicating it is entitled to a Federal Reserve Bank, provided that no reduced rate of such assignment shall release the transferor Lender from any of its obligations hereundertax).
(bc) By executing and delivering an Assignment and Acceptance, the assigning 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 Acceptance, such the 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 Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower any Loan Party or any of its Subsidiaries or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement or any other instrument or document Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with copies of the financial statements referred to in Section 4.01(e) 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 Administrative Agentassigning Lender, such assigning Lender any Agent 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 AgreementAgreement and the other Loan Documents; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent Agents to take such action as agent agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent Agents by the terms hereofhereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (viivi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(cd) The Administrative Agent shall maintain (and with respect to the Term Loans, the Collateral Agent) shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain, or cause to be maintained at its address referred to in Section 8.02 the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Commitment Amount Commitments of, and the principal amount of the Advances Loans (and stated interest thereon) (the "Registered Loans") and Letter of Credit Obligations owing to, to each Lender from time to time (the “Register”)time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent Agents and the Lenders may treat each Person whose name is recorded in the Register 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. In the case of an assignment pursuant to the last sentence of 0 as to which an Assignment and Acceptance is not delivered to the Administrative Agent or the Collateral Agent, as applicable, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register (the "Related Party Register") comparable to the Register on behalf of the Borrower. The Related Party 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.
(de) Upon its receipt by the Administrative Agent or the Collateral Agent, as applicable, of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to 0 (which consent of the Collateral Agent or the Administrative Agent, as applicable, must be evidenced by the Collateral Agent's or the Administrative Agent's, as applicable, execution of an acceptance to such Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible AssigneeAcceptance), the Administrative Agent shallor the Collateral Agent, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit Aas applicable, (i) shall accept such Assignment and Acceptanceassignment, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof provide to the BorrowerCollateral Agent a copy of the fully executed Assignment and Acceptance.
(ef) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register or the Related Party Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register or the Related Party Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(g) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant 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.
(h) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with 0. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its promissory notes related thereto, if any) to secure obligations of such Lender in connection with any financing obtained by such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(i) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments, the Loans made by it and its Pro Rata Share of the Letter of Credit Obligations); provided, that (i) such Lender's obligations under this Agreement (including all or a portion of without limitation, its Commitment, Commitments hereunder) and the Advances owing to it and its participation in Facility LCs); provided that (i) such Lender’s obligations under this Agreement other Loan Documents shall remain unchanged, ; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) and the Borrower, the Administrative Agent Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents; and (iviii) a participant shall not be entitled to require such Lender shall retain to take or omit to take any action hereunder except (A) action directly effecting an extension of the sole right to approvematurity dates or decrease in the principal amount of the Loans or Letter of Credit Obligations, without (B) action directly effecting an extension of the consent due dates or a decrease in the rate of any Participant, any amendment, modification interest payable on the Loans or waiver of any provision of the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in 0 of this Agreement or any other than any such amendment, modification or waiver Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of v) and 1)a)xi) of this Agreement with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in any portion of the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent Commitments and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute Loans as if it was 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCLender.
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gother than a Designated Bidder) shall to the extent required by such Section, may assign to one or more banks or other entities financial institutions all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the A Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement (other than any right to make B Advances, any B Advances or any Notes), and the same constant percentage of all rights and obligations of such assigning Lender under the Short-Term Revolving Credit Agreement, unless the Short-Term Revolving Credit Agreement has been terminated, shall be contemporaneously assigned by such assigning Lender to the same assignee pursuant to Section 8.07(a) of the Short-Term Revolving Credit Agreement, (ii) the sum of (x) the amount of the Commitment Amount of the assigning Lender being Lend▇▇ ▇▇▇ng assigned to the assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event plus (y) the amount of the "Commitment" of the assigning Lender under the Short-Term Revolving Credit Agreement contemporaneously assigned by such assigning Lender to such assignee as contemplated by clause (i) of this sentence must be less equal to or greater than $10,000,000 or25,000,000 (unless the Borrower and the Administrative Agent shall otherwise consent, if less, the entire amount of such Lender’s Commitment, which consent may be withheld for any reason) and shall must be an integral multiple of $1,000,000 or such Lender’s entire Commitment1,000,000, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative 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 processing and recordation fee of $3,500 (which 3,000, and shall be payable by one or more of the parties send to the Borrower an executed counterpart of such Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCs); 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 Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of this Agreement, other than any such amendment, modification or waiver with respect to any Advance or Commitment in which such Participant has an interest that forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones any date fixed for any regularly scheduled payment of principal of, or interest or fees on, any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender 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 furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPC.rights
Appears in 1 contract
Sources: Long Term Revolving Credit Agreement (Burlington Resources Inc)
Assignments and Participations. (a) Each Lender may, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section, may assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances Loans owing to it and its participation in Facility LCsthe Note or Notes held by it); provided that provided, however, that: -------- ------- Credit Agreement ----------------
(i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement, Agreement (other than any Competitive Bid Loans or Competitive Bid Loan Notes),
(ii) the amount of the Commitment Amount of the assigning Lender being assigned pursuant to each such assignment other than an assignment to another Lender (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or, if less, the entire amount of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitment, in excess thereof,
(iii) each such assignment shall be to an Eligible Assignee, and (unless such assignment shall be to a Subsidiary of the assigning Lender or to a Subsidiary of the bank holding company of which the assigning Lender is a Subsidiary) the Borrower and the Administrative Agent shall have consented to such assignment (which consents shall not be unreasonably withheld or delayed),
(iv) after giving effect to such assignment, the assigning Lender (together with all Affiliates of such Lender) shall continue to hold no less than 25% of its original Commitment hereunder and of the Loans owing to it, unless the Borrower shall otherwise agree,
(v) the parties to each such assignment shall execute and deliver to the Administrative 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 processing and recordation fee of $3,500 2,500, and
(which vi) unless the Borrower and the Administrative Agent otherwise agree, the Termination Date of the assignee under each such assignment shall be payable by one or more of deemed to be the parties to the Assignment and Acceptance, and not by the Borrower (except in the case of a demand under Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Defaultthen Final Termination Date. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shallshall relinquish its rights and be released from its obligations under this Agreement, to the extent Credit Agreement ---------------- 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 (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(c)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 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 the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) 5.01 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 Administrative Agent, any Managing Agent, the Documentation Agent, the Letter of Credit 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent and the Letter of Credit Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Letter of Credit 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 of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) Each New Lender shall submit a New Commitment Acceptance in accordance with the provisions of Section 2.06(b). Upon the execution, delivery, acceptance and recording of a New Commitment Acceptance, from and after the Increase Date related thereto such New Lender shall be a party hereto and have the rights and obligations of a Lender hereunder having the Commitment specified therein (or such lesser Commitment as shall Credit Agreement ---------------- be allocated to such New Lender in accordance with Section 2.06(b)(vi) or 2.15(d)). By executing and delivering a New Commitment Acceptance, the New Lender thereunder confirms to and agrees with the other parties hereto as follows: (i) such New Lender hereby agrees that no Lender has made any representation or warranty, or assumes any responsibility with respect to, (x) 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 or any other instrument or document furnished pursuant hereto or (y) the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (ii) such New Lender confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such New Commitment Acceptance; (iii) such New Lender will, independently and without reliance upon the Administrative Agent, any Managing Agent, the Documentation Agent, the Letter of Credit Agent 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; (iv) such New Lender confirms that it is an Eligible Assignee; (v) such New Lender appoints and authorizes the Administrative Agent and the Letter of Credit Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Letter of Credit Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such New Lender 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 at its address referred to in Section 8.02 9.02 a copy of each Assignment and Acceptance and each New Commitment Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Amount of, and principal amount of the Advances Revolving Loans owing to, each Lender from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding -------- for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Credit Agreement ---------------- Lender at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall provide the Borrower with a copy of the Register upon request.
(di) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Loan Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC-1 hereto, (i1) accept such Assignment and Acceptance, (ii2) record the information contained therein in the Register and (iii3) 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 Administrative Agent in exchange for the surrendered Revolving Loan Note or Notes a new Revolving Loan Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and a new Revolving Loan Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Revolving Loan Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Loan 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-l hereto. Such surrendered Revolving Note or Notes shall be marked "canceled" and shall be returned promptly to the Borrower.
(eii) Upon its receipt of a New Commitment Acceptance executed by a New Lender representing that it is an Eligible Assignee, the Administrative Agent shall, if such New Commitment Acceptance has been completed and is in substantially the form of Exhibit C-3 hereto, (1) accept such New Commitment Acceptance, (2) record the information contained therein in the Register and (3) 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 Administrative Agent a new Revolving Loan Note to the order of such New Lender in an amount equal to the Commitment assumed by it pursuant to such New Commitment Acceptance. Such new Revolving Loan Note shall be dated the relevant Increase Date and shall otherwise be in substantially the form of Exhibit A-l hereto.
(f) Each Lender may sell participations to one or more banks or other entities (each, a “Participant”) in or to all or a portion of its rights and/or and obligations under this Agreement (including all or including, without limitation, a portion of its Commitment, the Advances Loans owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (i) such Lender’s 's -------- ------- Credit Agreement ---------------- obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent, the Managing Agents, the Documentation Agent, the Letter of Credit Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement Agreement, (v) the parties to each such participation shall execute a participation agreement in substantially the form of the Participation Agreement, and (ivvi) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment to or waiver of any provision of this Agreementany Loan Document, other than or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, modification waiver or waiver with respect to any Advance consent would alter the principal of, or Commitment interest on, the Loan or Loans in which such Participant has an interest that forgives principal, interest participant is participating or any fees or reduces other amounts payable to the interest rate Lenders hereunder, or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Loans or any fees or other amounts payable hereunder. Each Lender shall provide the Borrower with a list of entities party to all Participation Agreements with such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such AdvanceLender upon request.
(fg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.079.07, disclose to the assignee or participant or proposed assignee or participant, any information information, including Confidential Information, relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided -------- that, prior to any such disclosuredisclosure of Confidential Information, the assignee or participant or proposed assignee or participant shall be informed of the confidential nature of such Confidential Information and shall agree to (i) preserve the confidentiality of any confidential information Confidential Information relating to the Borrower received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved be bound by the Majority Lenders, then (in the case provisions of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period9.11.
(h) Notwithstanding anything any other provision in this Section 9.07, no Lender may assign its interest to an Eligible Assignee if, as of the contrary contained hereineffective date of such assignment, such assignment would increase the amount of taxes or increased costs payable under Sections 2.12 or 3.05, respectively.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from at any time to time by and without the Granting Bank to consent of the Administrative Agent and the Borrower, the option to provide to or the Borrower create a Credit Agreement ---------------- security interest in all or any part portion of any Advance that such Granting Bank would otherwise be obligated to make 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation its rights under this Agreement (all liability for which shall remain including, without limitation, the Loans owing to it and the Notes held by it) in favor of any Federal Reserve Bank in accordance with the Granting Bank). In furtherance Regulation A of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination Board of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws Governors of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advance to the Granting Bank or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCFederal Reserve System.
Appears in 1 contract
Assignments and Participations. (a) Each Any Lender may(i) may (and in the case of clause (B) below, with the prior written consent of the Borrower, each LC Issuer and the Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if demanded by the Borrower pursuant to Section 8.07(gshall) shall to the extent required by such Section, assign to one or more banks Eligible Assignees or other entities an Affiliate of a Lender that is not an Eligible Assignee all or a portion of its rights and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances owing to it and its participation in Facility LCsthe Note or Notes held by it); provided provided, however, that (A) except in the case of an assignment to an Eligible Assignee that is a Lender or an Affiliate of a Lender, each of the Administrative Agent and, unless a Default shall have occurred and be continuing at the time such assignment is effected, the Borrower must give their prior consent to such assignment (which consent shall not be unreasonably withheld or delayed) and (B) if the assignment is demanded by the Borrower pursuant to Section 2.17, no Default shall have occurred and be continuing at the time of such demand and such assignment and the Borrower shall have given at least five Business Days’ notice of such demand to the applicable Lender and the Administrative Agent; provided, however, that (i) each such assignment shall be of a constantuniform, and not a varying, percentage of all rights and obligations under and in respect of the assigning Facility, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (ii) the aggregate amount of the Commitment Amount of the assigning Lender being assigned to such Eligible Assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the lesser of $10,000,000 or5,000,000 and 5% of the aggregate amount (or such lesser amount as shall be approved by the Administrative Agent and, if lessso long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the entire amount Borrower) of such Lender’s Commitment, and shall be an integral multiple of $1,000,000 or such Lender’s entire Commitmentthe Commitment being assigned, (iii) each such assignment shall be to an Eligible AssigneeAssignee or an Affiliate of a Lender, (iv) each such assignment made as a result of a demand by the Borrower pursuant to Section 2.17 shall be arranged by the Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment (whether as a result of a demand by the Borrower pursuant to Section 2.17 or otherwise) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to each such assignment shall execute and deliver to the Administrative 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 processing and recordation fee of $3,500 (which 3,500; provided, however, the Borrower shall be payable by one or more have no liability for the payment of the parties to the Assignment and Acceptance, and not such fee except that for each such assignment made as a result of a demand by the Borrower (except in the case of a demand under pursuant to Section 8.07(g))2.17, and shall not be payable if the assignee is a Federal Reserve Bank), and (v) the consent of the Borrower shall not be required after pay to the occurrence Administrative Agent the applicable processing and during the continuance of any Event of Default. recordation fee.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each such Assignment and Acceptance, (xi) 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 (yii) 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 (other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section 8.04(chereto)). Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the consent of the Borrower, the LC Issuers and the Administrative Agent shall not be required with respect to any assignment by any Lender to an Affiliate of such Lender or to another Lender and (B) any Lender may at any time, without the consent of the Borrower, any LC Issuer or the Administrative Agent, and without any requirement to have an Assignment and Acceptance executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank, provided that no such assignment shall release the transferor Lender from any of its obligations hereunder.
(bc) By executing and delivering an Assignment and Acceptance, the each Lender assignor thereunder and the each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, 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 any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of this Agreement any Lien created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant heretothereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower General Partner, any Loan Party or the performance or observance by the Borrower any Loan Party of any of its obligations under this Agreement any Loan Document or any other instrument or document furnished pursuant heretothereto; (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(e) 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement the Loan Documents as are delegated to the Administrative Agent by the terms hereofhereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(cd) The Administrative 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 Lenders and the Commitment Amount of, and principal amount of the Advances Advance owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or the Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assigneeassignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit AC 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 and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall, if new Notes are requested by the applicable assignee and/or assignor, execute and deliver to the Administrative 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 portion of the Borrowing assumed by it pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder, a new Note to the order of such assigning Lender in an amount equal to the portion of the Borrowing 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 hereto.
(ef) Each Lender may sell participations to one or more banks Persons (other than any Loan Party or other entities (each, a “Participant”any of its Affiliates) in or to all or a portion of its rights and/or and obligations under this Agreement (including including, without limitation, all or a portion of its Commitment, the Advances Advance owing to it and its participation in Facility LCsthe Note or Notes (if any) held by it); provided provided, however, that (i) such Lender’s Lender obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders Lender shall continue to deal solely and directly with such Lender in connection with such Lender’s Lender rights and obligations under this Agreement and (ivv) no participant under any such Lender participation shall retain the sole have any right to approve, without the consent of approve any Participant, any amendment, modification amendment or waiver of any provision of this Agreementany Loan Document, other than or any consent to any departure by or on behalf of any Loan Party therefrom, except to the extent that such amendment, modification waiver or waiver with respect consent would reduce the principal of, or interest on, the Notes or other amounts payable hereunder, in each case to any Advance or Commitment in which the extent subject to such Participant has an interest that forgives principalparticipation, interest or fees or reduces the interest rate or fees payable with respect to any such Advance or Commitment, postpones postpone any date fixed for any regularly scheduled payment of principal of, or interest or fees on, the Notes or other amounts payable hereunder, in each case to the extent subject to such participation, or release any such Advance or Commitment, extends any Commitment, releases any guarantor of any such Advance or releases any substantial portion of collateral, if any, securing any such AdvanceSubsidiary Guarantor.
(fg) Any Lender 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, participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided 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 relating to the Borrower Information (as defined in Section 8.09) received by it from such Lender (subject to customary exceptions regarding regulatory requirements, compliance with legal process and other requirements of law).
(g) If any Lender (i) shall make demand for payment under Section 2.11(a), 2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Advances or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and has been approved by the Majority Lenders, then (in the case of clause (i)) within 60 days after such demand (if, but only if, such payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower) or (in the case of clause (ii)) within 60 days after such notice (if such suspension is still in effect) or (in the case of clause (iii)), within 60 days after the date a draft of the applicable amendment or waiver was delivered to such Lender, as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent and the LC Issuers all (but not less than all) of such Lender’s Commitment, the Advances owing to it and its participation in the Facility LCs and all of its other rights and obligations hereunder within the next succeeding 30 days. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment, Advances and participation in Facility LCs, then such Lender may (but shall not be required to) assign such Commitment and Advances to any other Eligible Assignee in accordance with this Section 8.07 during such period.8.09
(h) Notwithstanding anything to the contrary contained hereinany other provision set forth in this Agreement, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from at any time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower pledge or assign all or any part portion of its rights under this Agreement to secure obligations of such Lender, including, without limitation, any pledge in favor of any Advance that such Granting Federal Reserve Bank would otherwise be obligated to make pursuant to this Agreementin accordance with Regulation A of the Board of Governors of the Federal Reserve System; provided that (i) nothing herein no such pledge or assignment shall constitute release a commitment by Lender from 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 Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.07, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in obligations hereunder or substitute any Advance to the Granting Bank such pledgee or to any financial institution (consented to by the Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed) providing liquidity and/or credit support to or assignee for the account of such SPC to support the funding or maintenance of Advances and (ii) disclose on Lender as 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 8.07(h) may not be amended in any manner which adversely affects a Granting Bank or an SPC without the written consent of such Granting Bank or SPCparty hereto.
Appears in 1 contract
Sources: Term Loan Agreement (Alliance Resource Partners Lp)